THE OBLIGATION Resulting from the OATH of SUPREMACY, To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power BELONGING To the KING, his Heirs and Successors. In the asserting of that Power various Historical Passages occurring in the Usurpation after the Year 1641. are occasionally men­tioned; And an Account is given at large of the Progress of the Power of Dispensing as to Acts of Parliament about Religion since the Refor­mation; and of divers Judgments of Parliaments declaring their Appro­bation of the Exercise of such Power, and particularly in what concerns the Punishment of Disability, or Incapacity.

Princes are Supreme over Persons, not over Things.

This is the Supreme Power of Princes which we teach, that they be Gods Ministers in their own Dominions, bearing the Sword, and freely to permit and publickly to Defend that which God commandeth in Faith and good Manners, &c.

Princes may Command the Bodies of all their Subjects in time both of War and Peace, &c.

Out of all Question where Princes may by God's Law Command, all Men must obey them, &c.

The Prince may discharge the Servant, but no Man can discharge the Subject.

The Word of God teacheth you to obey Princes; the words of men cannot loose you.


LONDON, Printed for Thomas Dring at the Harrow at Chancery-Lane End in Fleetstreet, William Crook at the Green Dragon without Temple-Bar, and William Rogers at the Sun over against St. Dunstan's Church in Fleet-street, 1687.

To the Right Honorable JOHN Earl of MELFORT, Viscount of Forth, Lord Drummond of Rickar­tone, &c. His Majesty's Principal Secretary of State for the Kingdom of Scotland, and one of His Majesty's most Honorable Privy Council in both King­doms of England and Scotland, &c.


AS the Historian hath told us of Ireland, that long ago while the Arts and Sciences were ge­nerally banish'd from the Christian World they were enthroned in Ireland, and that Men were sent thither from other Parts of Chri­stendom to be improved in Learning; so I have elsewhere observ'd that in some late Conjunctures (and particularly during the turbid Interval of the Exclusion) men might well be sent to Scotland to learn Loyalty.

And I having taken occasion in the first Part of this Dis­course to shew my self a just honourer of that Country, and (as I may say) somewhat like a Benefactor to it by sending thither the notices of some pass'd great Transactions that might possibly there give more light and life to the Moral Offices of Natural Allegiance or Obedience, did hold my self obliged in Common Justice to address this Part of my Work to your Lordship. For as your Station here quali­fies you beyond other Subjects to receive what Tribute is offer'd to your Country, so your handing it thither will ne­cessarily make it there the more acceptable.

And when I consider with what an incomparable Tender­ness for the Monarchy and its Rights so many of the Sta­tutes of Scotland since the Year 1660. have been adorn'd, I am apt to think that any matter of Presidents or Records by me recover'd out of the Sea of time where they lay so long useless and neglected, and now happening to be serviceable [Page] to those Moral Offices before-mention'd, would by the so many in that Kingdom devoted to consummate Obedience and Loyalty, be more valued then if I could have imported into that Realm another such Treasure as that which lay so long buried in the Ocean near the Bahama Islands, and that whoever Contributed to your Loyal Country any Substan­tial Notions that might enrich it in the discharge of the Duties of the born and sworn Allegiance, would be esteem'd there as some way sharing in the honour of Arauna, in giving like a King to a King.

Long may your great Master live happy in the Enjoy­ment of the faithful Services of so vigilant a Minister as your Lordship, who by the universality of your Knowledge ac­company'd with universal Charity for all Mankind, have appear'd to be born, as I may say, for the time of his most glorious Reign, the time chosen by Heaven for Mercies Triumph on Earth.

Nothing vulgar was to be expected from a Person of your Lordship's extraordinary intellectual and moral Endowments, and in whom the Loyalty and other Virtues of your many noble Ancestors have (as it were) lived extraduce. And the World would be unjust to you if it acknowledged not its great Expectation answer'd by your greater Performances, and particularly by your having been so eminently Ministe­rial in the Easing both the Cares of your Prince, and of all his Subjects too by the Figure you have made in promoting the Ease of his People's Consciences, and in further enno­bling and endearing the Name of DRUMMOND by your Lordship's Prosecuting that by the Bravery of Action, which the HISTORIAN of that your Name did by Words, when he transmitted to Posterity the most Christian and Statesman­like Speech of Liberty of Conscience, I know extant, and as spoke by a Roman-Catholick Councellor in Scotland to King Iames the Fifth.

I most humbly kiss your Lordship's Hands, and am,

My Lord,
Your Lordships most Obedient Servant, P. P.

THE OBLIGATION Resulting from the Oath of Supremacy. To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power, Belonging to the KING, his Heirs, and Successors, &c.


IN this Kingdom of England, so naturally of old addicted to Re­ligion and vehemence in it, as to give a Bishop of Rome cause to complain, he had more trouble given him by Applications from England about it, then from all the World beside; and afterward to make Geneva wonder at the Sabbatarians here ex­ceeding the Iewish strictness; and to cause Barclay in his Eu­pho [...]mio to say of the English, Nec quicqúam in numinis cultu modicum possunt, and that our several Sects thought unos se Coelestium rerum partici­pes, exortes coeteros omnes esse: did you ever observe, hear or read of the style of Tenderness of Conscience so much used as in the year 41. and some­time afterward?


I have not. From the Date of King Charles the First's Declaration to all His loving Subjects about that time, wherein he speaks of his Care for Exemption of Tender Consciences, till the Date of King Charles the Second's Declaration from Breda, wherein the Liberty of Tender Con­sciences is Provided for, the clause of easing Tender Consciences ran through the Messages, Addresses, and Answers that passed between King and Parliament almost as much as the Clause of proponentibus legatis did run through the Councel of Trent.


But were not their Consciences extremely erroneous who thought themselves bound then to advance Religion by War?


A [...], and by a Civil War (as you might have added) against a Prince of the tenderest Conscience imaginable: for that Character he had from an [Page 2] Arch-bishop in his Speech in the Parliament of 40 who said, Our Sovereign is, I will not say above other Princes, but above all Christian men that ever I knew 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 who [...]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 sea [...]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 Sa [...]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 [Page 3] People indebted and ne [...]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 [...]e who [...]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 L [...]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-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 es [...]ablish'd both by a General Assembly, and by Act of Parliament. King Charles his large Declaration of the [...]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 [Page 4] 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 th [...]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 Ux­bridg [...] 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 [Page 5] of the Church of England in General) is the surest guard to Princes Thrones and their Tribunals; and that therefore 'tis 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 publickly or privately [...] he should be lawfully restored and releas'd of his said Suspension. But shortly after the beginning of the Reign of the Royal Martyr, he was again restored; and was afterward again silenced, and so continued till August 2. A. 1631. and then he was again restored. And Mr. Dod's Life represents his Case as parallel with this before-mention'd. He was in King Iames his time suspended and restored, and again by the King's particular Command disabled from Preaching, and was by King Charles the First re-ennabled or restored.

Thus as fortis fortem amat, one tender Conscienced man too loves ano­ther such; and the Executive Power of the Law in re-ennabling after temporary Disability, was tenderly administred by these our Princes to these Conscientious Men, with respect to their real Capacity of Favour to be shew'd them.


You have here given me a taste en passant of part of the Dispensative Power, as exercised in the three Realms during some Conjunctures in the Reign of King Charles the First, and for which I thank you, and particular­ly for what you told me of the Act of Parliament dispens'd with in Scotland, [Page 6] of which I never heard before; and am apt to suppose a thing of that Na­ture was never done before in that Realm.


I can assure you, to those who know the Publick Transactions of that Kingdom, the thing will not in the least seem new. I can tell you that on the 26th of November, A. 1593. King Iames the 6th of Scotland made an Act of State in favour of three Roman-Catholick Earls, Huntly, Arroll and An­gus, by which Act he allow'd them several Priviledges, contrary to Acts of Parliament made against Roman-Catholicks. And His Majesty in his Act of State expresly dispenseth with those Acts of Parliament: and which Dispensation tho Queen Elizabeth importuned him to revoke (and for that purpose sent the Lord Zouch as her Embassador to him) he still adhered to the Act of State he had made, and continued his Dispensation.


Have you this Matter of Fact out of any of the Records in England or Scotland?


I have it out of the Original Papers under the hand of Queen Eliza­beth and her great Minister Burghly, and the Original Instructions of the Lord Zouch when sent by her to expostulate with the King about it, that were lately in my Custody, and by me sent to our gracious Sovereign: and I shall some other time give you a more particular account of that Dispensation.


But (I beseech you) did not the Protestant Divines of the Church of Scotland then cry out of the unlawfulness or inexpedience of that Dis­pensation?


I have read it in a learned Book of Dr. Maxwell a Scotch-man, Printed A. 1644. (and who was then Bishop of Killally in Ireland, and had formerly been Bishop of Rosse) that Mr. Robert Bruce one of the Ministers of Edenburgh, and who had a great sway in the Church of Scotland, was pleas'd with the King's extending his Favour to Angus and Arroll, but out of a factious Complyance with the Earl of Arguile, was displeas'd at its being shewn to Huntly. But that Loyal Bishop there acquiesceth in the reason of State, that inclined the King to Pardon the three Earls, and his there­by hindering the growth of Faction in Scotland, and providing for his more easie and secure access to the Throne of England on the Death of Queen Elizabeth.

And so you may easily guess what sort of men in Scotland look'd with an evil eye on that Act of the Royal goodness, and who did not. The Bi­shop there had applauded the great depth of the King's Wisdom, and his transcendent Goodness in the Pardoning the three Earls, and mention'd that there was nothing of Religion in the Case of Bruce's Aversion against the Par­don of Huntly, for that Angus and Arroll were as bigot Papists, if not more then Huntly.

I can likewise direct you to my Lord Primate Bramhal's celebrated Book call'd A Fair warning to take heed of the Scotish Discipline, where in Chap. 6. thus entituled, viz. That it robs the Magistrate of his Dispensative Power; he saith by way of instance, When the Popish Earls of Angus, Hunt­ly, and Arroll, were excommunicated by the Church, and forfeited for Trea­sonable Practices against the King, it is admirable to read with what Wisdom, Charity, and Sweetness his Majesty did seek from time to time to reclaim them from their Errors, &c. and on the other side to see with what bitterness and radicated Malice they were prosecuted by the Presbyteries and their Commissioners, &c. sometimes threatning that they were resolv'd to pursue them to the uttermost, tho it should be with the loss of all their Lives in one day, &c. sometimes pressing to have their Estates confiscated, &c. He refers there in his Margin to Ass. Edinb. 1594.

[Page 7]But any one who shall consult D'Ossat's Letters, and there in the Second Book carefully read over the 37th Letter that was writ to Villeroy in the year 1596, and three years after the Date of King Iames his Act of State, and observe what that great Sagacious Cardinal there refers to concerning the Circumstances of those three Earls, and how all the Prudence that could be shewn by man, was but little enough for the Conduct of that King in that Conjuncture, in order to his removing what Impediments either from Rome or Spain, or his Native Country might obstruct his Succession to the Crown of England; will not wonder at his having dispens'd and continued his Dispensation as aforesaid.


I have not yet ask'd you whether the Divines of the Church of Eng­land, did not lift up their voices like a Trumpet against the Dispensative Power thus exercised by their Prince, as you have mention'd?


They discharged their Duties in Preaching occasionally against all growing Errors: but they wanted none to mind them of the Saying, Im­pium esse qui Regi dixerit, Inique agis. The Pious and Learned Author of Certain Considerations tending to Peace, &c. mentions how the Bishop of St. Davids in King Iames's Reign, A. 1604. did in a set Speech in Convo­cation shew, that Ministers were not in the late Archbishop's time disabled from their Ministry on the Account of Non-conformity to the Ceremonies by Law enjoyn'd; and concluded his Speech with the motion of Petitioning the King, That if the removal of some of the Ceremonies enjoyn'd could not be ob­tain'd, nor yet a Coleration for them of more stay'd and temperate Car­riage, yet at least there might be procured a mitigation of the Pe­nalty, &c.

And as the Suspension or Disabling of Hildersham and Dod from their Ministerial Functions, so the Restoring of them to the same without all such things done by them as the strictness of the Lawes required, was in both those Princes Reigns executed by the Bishops.

Nor do I remember to have read of any Divine of the Church of England to have in the least look'd with an evil eye on the goodness of the 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 Conjunct [...] [...]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, [Page 8] 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.


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?


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 [Page 9] 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 writ for it were with great heat impugned in Print by Mr. Gillespy a Divine of Scot­land, and one of the Commissioners in England for that Kingdom: and who in a Printed Sermon of his Preach'd before the House of Lords, doth call Erastus the great Adversary; and in one of his Pamphlets against Mr. Cole­man, call'd Nihil Respondes, mentions how the Presbyterians and Inde­pendents were both equally interessed against the Erastian Principles.

And as to the greatness of the number of the Covenanters out of Parlia­ment that rejected the Iure-divinity of the Scots ruling Elders, Mr. Cole­man gives us his Judgment in p. 12. of his Reply to Nihil Respondes, viz. that 9/10 of the Assembly, and 900/1000 of the Kingdom denyed a Ruling Elder to be an instituted Officer jure divino.

But Heylin having told us in his History of Presbytery, That Presbytery did never setle its Lay-Eldership in any one Parish in England: we may easily thence suppose the National Violation of that National Covenant, without any apparent regret of Conscience on that account.

How all the Independent Clergy and Layety who had took the Covenant did in a manner simul & semel most notoriously violate it, in setting up the model of their Church-Government is not unknown.

But indeed, as the very sagacious Author of the Book call'd, The main Points of Church-Government, &c. Printed in London, A. 1649. hath ob­serv'd, The known sense of the Scotish Nation which framed the Covenant, and for whose Satisfaction the Covenant was here taken, doth include Inde­pendency under the name of Schism, or at least under those words contrary to sound Doctrine; and our Independent Divines could not but know this to be their sense of it, and yet we know of none that did protest against it, or explain themselves otherwise at the first taking of the Covenant, if they have done it since.

And I might further tell you, that after the Engagement was set up of being true and faithful to the Common-wealth of England as it is now Esta­blish'd without a King or House of Lords; tho several of the Presbyterian [Page 10] Divines out of a sense of their Oaths and Allegiance, and their Covenant were so Loyal as to refuse it, I have not heard of any of those Independent ones who did.

But such was the Inundation of Practical Atheism in the Kingdom that our Civil Wars had caus'd, that when the Engagement was set up, almost the whole Body of the Lawyers in England took it rather then they would lose their Practice. These men knew the meaning of the Acts of Parliament con­taining the Oaths of Allegiance and Supremacy, and yet were abandon'd by a disloyal Sophistical Principle of the want of Power in a lawful Sovereign to protect them, absolving them from their Obedience, to cancel their Oaths in the Court of Conscience.

And in a word further to shew you how the tender Regard of publick Promises was here grown one of Pancirol's lost things, I shall tell you, that tho in the Parliament of Richard Cromwell, none was allowed to sit but he who had first took a Recognition of engaging to be true and faithful to the Lord Protector, &c. and not to propose or give any Consent to alter the Go­vernment as 'tis setled in one single Person and a Parliament, yet the Repub­licans in that Parliament were not in the least diverted by that Recognition from endeavouring there to alter the Government, and it was there avowed by them, that a Promise or Oath took without Doors, did not bind within.

And at last to bring up the Rear of mens Perjury, after all the Oaths legal and illegal had been so much confounded, when the late King's Re­stauration was almost in sight on the then General Monk with his Army coming to London, a new Oath of Abjuration of the Royal Line was at that time set on foot in Councel, and which some there would have had impo­sed on the General himself.


Good God! What a Concatenation of Perjuries was our Land so long enslaved with? you have referr'd to the Solemn League and Covenant for extirpating Popery and Superstition, and while a General Assembly, and Parliaments were planting here the Doctrine of the Council of Lateran, namely the Absolving Subjects from their Oaths of Allegiance.


And while they were planting a Discipline, that Archbishop Whit­gift in his Reply to T. C. p. 299. 559. and Bishop Hall in his Book of Episcopacy, Part 3. p. 34. and Bishop Downham in his Defence of his Sermon, l. 1. c. 8. p. 139. And Archbishop Bramhal in his Fair warning to take heed of the Scotish Discipline almost throughout, do charge with POPERY; and where the last Archbishop doth represent the Covenant with the terms of Baal, Baal berith and Baalims, and saith, It were worth the enquiring whether the marks of Anti-Christ do not agree as eminently to the Assem­bly general of Scotland, as either to the Pope or to the Turk. This we see plainly that they spring out of the Ruines of the Civil Magistrate: they sit upon the Temple of God, and they advance themselves above those whom the Scripture calls Gods.


That Archbishop's saying, It were worth the enquiring thus concerning that general Assembly as then used, is the only thing wherein I differ from him, for I think there is no doubt in the case.


To this you may add the thoughts of their being associated against Superstition, while they were planting the grossest Superstition that any Age hath known, if we may take our measures of Superstition from that definition of it in the Reformatio legum Ecclesiasticarum, viz. Superstitio cultus est ad Deum relatus, immenso quodam proficiscens humano Studio, vel animi certâ propensione quam vulgò bonam intentionem vocant, &c.

[Page 11]Let any one consider, how after the beginning of the Parliament of Forty, they had obtain'd in the very Act that took away the Ship-money, that all the Particulars prayed or desired in the Petition of Right should be enacted; one whereof was, That no Oath should be imposed on the Subjects that was not establish'd by Act of Parliament, and how in despite of that Law, they without any such Act, out of a blind Zeal for Religion, imposed this dread­ful Oath on the People: Let any one but read over The Covenant with a Narrative, and the Speeches of Mr. Nye and Mr. Hendersham at the time of the Solemn Reading, Swearing and Subscribing of the Covenant by the House of Commons, and Assembly of Divines in St. Margaret's Church▪ and observe in Mr. Nye's Speech, his Saying, that ASSOCIATION is of Divine offspring, and his resembling of this Covenant to the Covenant of Grace, and the matter of it there represented by him as worthy to be sworn by all the Kingdoms of the World, as a giving up of all those Kingdoms to Christ; and where it followeth, yea, we find this very thing in the utmost accom­plishment of it, to have been the Oath of the greatest Angel that 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 [Page 12] Gesta Britannorum relates it as a strange thing that on the 21st of August, A. 1663. the Parliament of Scotland Pass [...]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 16th 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.


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 [Page 13] Canons, &c. may not the King by this Act make the external Government of the Church of Scotland Patriarchal, and the Pope Patriarch?


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 div [...]ne Institution, and that he had in p. 4. of that Book, allow'd the Pope his Principium unitatis, and his Preheminence among Patriarchs, as S. Peter had among the Apostles; and that in p. 78. of his Iust Vindication of the Church of England, he takes notice that by the Statute of Carlisle, made in the days of Edward the First, it was declared, That the Holy Church of England was founded in the Estate of Prelacy by the Kings and Peers thereof.

But now further to entertain your thoughts with the great Scene of the New Heaven and the New Earth in that Kingdom, and of Men there walk­ing at liberty, as the words in the Psalms are (or at large, as 'tis in the Ma [...]gin, and as in the Latin, indesinenterque ambulabo in ipsa LATI­TUDINE quia mandata tua quaero) whose measures were before staked down to the Narrow tedder of Presbytery, and whose Souls were once en­slaved to a blind Zeal for that Church-Government (as what they then fan­cy'd to be the putting the Scepter into Christ's hand, and the only effica­cious means to keep out Popery) I shall tell you that they have now put the Scepter into their Prince's hand to rule the Church with what external Go­vernment he will, who were form [...]rly so ready to enslave both Kingdoms, by designing to put the Royal Scepter of Scotland into the French King's hands, and to bring a Popish French Army into Scotland to enforce the setlement of Presbytery.


One would hardly think it possible that they should then design any such thing.


As the Civil Law rangeth things that wound mens Piety▪ Reputation, or good Manners, among Impossibles; so one would think those of the Scots then designing a thing of that Nature, to be an Impossibility. And any one would thus think it impossible, who consider'd that the Crown of England, A. 1560. sent Forces into Scotland, whereby the French were driven out of that Kingdom, and that thereupon in the Publick printed Prayer prefixt to the Scots Psalm-Book, it is said, viz. And seeing that when we by our own Power were altogether unable to have freed our selves from the tyranny of Strangers, thou of thine especial goodness didst move the hearts of our Neighbors (of whom we had deserv'd no such favour) to take upon them the common burden with us, and for our deliverance not only to spend the lives of many, but also to hazard the Estate and Tranquillity of their Realm; grant unto us, O Lord, that with such reverence we may remember thy benefits receiv'd that after this, in our default we never enter into hostility against the Realm and Nation of England. Suffer us never, O Lord, to fall to that in­gratitude and detestable unthankfulness, that we shall seek the Destru­ction and Death of those whom thou hast made Instruments to deliver us from the tyranny of merciless Strangers, &c. But he who shall read K [...]ng Charles the First's Declaration concerning his Proceedings with his Subjects of Scotland since the Pacification in the Camp near Berwick, Printed A. 1640. will find this Fact too true: and the Letter there like­wise Printed, which was under the hands of the Leading men of the Pres­byterian Faction in Scotland writ to the French King, and wherein his assi­stance is implored.

[Page 14]

But by that Act about the Supremacy in Scotland, A. 1669. that you read to me, I see that the old Leaven of Presbytery is there sufficiently purged out, and that the very mass of Blood in mens Principles relating to the Regal Power is universally sweeten'd.


You have great reason to judge so; and if you had read the Scotch Statutes since the year 1660, you would find the Body of that Nation having the temperamentum ad pondus for Loyalty.

And your having mention'd the old Leaven there purged away, minds me of minding you that that Nation having so nobly discharged its moral offices in that Case, ought to be absolv'd in the thoughts of all the Loyal from the Fact of its former deflection from Loyalty: and that the great measures of Christian Charity ought to extend beyond that Judgment of Seneca, that poenitens est fere innocens, and even as far as S. Paul's gene­rous discharge of the Corinthians on their having purged out that fer­ment, viz. For behold what carefulness it wrought in you, what clearing of your selves, yea, what indignation, yea, what fear, yea, what vehement desire, yea, what zeal, &c. In all things ye have approved your selves to be clear in this Matter. Look on their Acts of Parliament in the time of K. Charles the Second, by one of which it is declared, That his Majesty his Heirs and Successors, by Uirtue of the Royal Power which they hold from God Almighty over this Kingdom, shall have the sole Choice and Appointment of Officers of State, and Councellors and Iudges; and by another, That the Estates of Parliament considering that the Kings of this Realm deriving their Power from God Almighty do succeed Li­neally thereunto. And I can direct you to another, that contains in it so strange a Resignation to the King's measures, as may make you again won­der at the possibility of such a temper, and not to be equall'd by any thing I have read of▪ but that pang of Zeal wherewith so many once at Cam­bridge were affected for Edward the Senior, when they swore to will what he willed; I mean that Act of Parliament in Scotland An. 1661. Concern­ing the League and Covenant, and discharging the renewing thereof without his Majesties Warrant and Approbation. The Act concludes with an Inhibition, That none presume to renew that Covenant or any other League or Covenant without his Majesties special Warrant so to do. Thus then that Covenant tho by them so much nauseated, they shew'd themselves ready again to swallow, if his Majesty for any such reasons of State, as they could not foresee, should enjoyn them so to do.


You do indeed make me wonder at this great example of the ten­derness and extent of loyal Obedience in Scotland.


I can tell you of another Act of Parliament, viz. the 5th Act of the second Session of the second Parliament of K. Charles the 2d Edenburgh 13. August The Act against Conventicles, where their very Zeal against them is a Wall of Fire to guard the Dispensative Power. The Act runns thus, Forasmuch as the Assembling and Convocating his Majesties Subjects without his Majesties Warrant and Authority is a most dan­gerous and unlawful Practice, prohibited and discharged by several Laws and Acts of Parliament under high and great Pains, &c. for the sup­pressing and preventing of which for the time to come, his Majesty with Advice and Consent of his Estates of Parliament, hath thought sit to Statute and Enact, &c. That no outed Ministers who are not LICENSED by the Councel, Persons not Authorized or TOLERATED by the Bishop of the Diocess, presume to Preach, expound Scripture, or pray in any Meeting, &c. and that none be present at any Meeting without the Fa­mily [Page 15] to which they belong, where any not licensed, authorized nor tole­rated, as said is, shall Preach, expound Scripture, or Pray, &c.


The Act for Uniformity here 16 Car. 2. doth justice to the Preroga­tive of the Crown in dispensing, by taking care that the Penalties in it shall not extend to the Foreigners or Aliens of the forriegn Reform'd Chur­ches allow'd or to be allow'd by the King's Majesty, his Heirs and Suc­cessors in England, and which were granted to them with non-obstante's to all Acts of Parliament.


And the Act 22o Car. 2. entitled, Seditious Conventicles prevented and suppressed, passing in the Parliament of England in the same Year that the Act against Conventicles did in Scotland, and concluding with a Proviso, That nothing therein contained, shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs, but that his Majesty and his heirs and Successors may from time to time, &c. exercise and enjoy all Power and Authority in Ecclesiastical Affairs, &c. any thing in this Act notwithstanding, shewed such a Concordant Sympathy between the two Realms in tenderness for the prerogative of dispensing with the Pe­nal Laws Ecclesiastical, as is between the Strings of two distant Lutes, on the touching the String but of one of them. But I must tell you, that tho by this Proviso the benefit of the Dispensative Power hath been sufficient­ly secured to the Churches of Forreigners here, and the King's Ecclesiastical Supremacy justify'd in its power of indulging the Conventicles of all sorts of Recusants, yet as in the Scotch Act the Crown's dispensing with Conventi­cles hath been more express then in the English Act, so hath the admini­stration of Prerogative in that kind been more tenderly and signally exer­cised in Scotland, then I have observ'd it to be in England.

For I find in a Look call'd A Compendious History of the m [...]st remarka­ble Passages of the last 14 Years, &c. printed An. 1680. that in p. 205. the Author referring to the Month of Iuly, 1677. saith, that upon a Rebelli­on in that Kingdom being nipt in the Bud, his Majesty was pleas'd to publish a Proclamation, Commanding the Iudges and all Magistrates to apprehend and punish all such as frequented any Field-Conventi­cles, &c. according to the Prescript of the Law, as also to prosecute with all Legal Rigour the execrable Murtherers of the late Arch-Bishop of St. Andrews: declaring withal that his Majesty being desirous to reclaim all such as had been mis-lead through Ignorance or blind zeal, had according to the Power reserved to his Majesty by the 5th Act in the 2d Session of the 2d Parliament, suspended the execution of all Laws and Acts against such as frequent house-Conventicles on the south­side of the River Tay, excepting the Town of Edenburgh, and two Miles round the same, &c.

And the truth is, it must likewise be to the honour of that Nation ac­knowledged that in the worst of Times, they after their Covenant did not Contract any such guilt of Perjury by a superfetation of enterfering Oaths, as great Numbers of our Land did: and that they were exemplary to Eng­land in Loyalty, and in propping up the hereditary Monarchy, while so many here in the Plott-Conjuncture were infatuated with the Project of the EXCLUSION, as to give me occasion by a fresher instance, and but of yesterdays occurrence to invite you to behold a Spectacle of the divine Iu­stice in abandoning such Men here to the guilt of Superstition who used un­just means to extirpate it.

Such among us who had not took notice of that English and Scotch SAINTE LIGUE, and its being so generally exploded, and who in the late Ferment about Popery would have fortify'd an Exclusion with an Asso­ciation; [Page 16] and again set up Association as of Divine-Off-spring, you see how be­ing wild with excessive Fears and Iealousies of the growth of Popery, they were guilty of the Superstition of founding Dominion in Grace.


Considering how Men here have laughed at the Obligation of their lawful Oaths, and that for unlawful Oaths a Land mourns, methinks 'tis an adventurous thing for a Prince to take possession of his Inheritance of the Empire of such a Land so encumbred with the guilt of Swearing and For­swearing.

O when may we see that antient general tenderness in point of Oaths here, that flourished among us in the days of our first Reformation: nay even in some times of our Roman Catholick Ancestors!


I believe never, till after all the living here being resolved to dust, and a new Race of Mankind enriching themselves and their Country by the Culture of the Earth and Manufactures, men shall be above Temptations from necessity, to take God's Name in vain; and when the very use of Oaths Assertory or Promissory, will be dispens'd with by Nature.

I am sure the Spectacle of mangled and slaughter'd Bodies covering a Field immediately after a Battle hath not more horror in it, then the sight of the Consciences mai'md and wounded by the inobservance of publick Oaths hath been since the Aera of 41.

And as our Chronicles mention, that they who were born in England the Year after the great Mortality An. 1349. wanted some of their cheek Teeth, I may say that generally they who have been born here the Years after 41. wherein the Plague of Perjury by the outraging those Oaths of Allegiance and Supremacy was so epidemical, have seem'd able only to swal­low those Oaths, but not to [...]hew upon them in serious and considerate thoughts: no not at the very frequent times of their taking them.

And still tho in speculative Points in England Consulitur de Religione; yet conclamatum est as to a general tender regard to the Religion of those Oaths.

There was (I think) a want of tenderness in some as to their sworn assisting and defending all the Priviledges and Preheminences belonging to the Crown, during the late Ferment about my Lord Danby's Pardon: and I may more sadly reflect on the same Mens want of recollecting their Oath obliging them to the King his Heirs and Successors at the time of the Ferment about the Exclusion.


I think that many who by repentance have been cured of the Epi­demical Plague of Perjury that reged here in 41. and of such a Plague, and another of Fears and Iealousies since 81, have yet sustain'd more dam­age thereby, then they who were born the Year after 1349 did in want­ing some of their Cheek Teeth; and that their case is like that of those who were recover'd of the great Plague at Athens that Thucydides hath de­scribed, and who tells us, that after their recovery, their Souls had lost the faculty of Memory, and were dozed with an [...] about what themselves had done, or what had passed in the World during the horror of that very Plague, or before or since. But after all this said, I am to ask you if you will make all those perjured who having took the Oaths of Allegiance and Supremacy, promoted the exclusion?


By no means. I have more Humanity and Christian Charity then to do so. I shall here observe to you that Divines in their measures of Mens sinful Actions do often make use of the distinction of materialiter and formaliter. Thus for example, Ames in his Cases of Conscience l. 5. c. 53. Si quis falsum dicit, putans esse verum, mentitur tantum materialiter. Si quis verum dicit, putans esse falsum, mentitur formaliter. And he hav­ing [Page 17] before in l. 4 c. 4 viz Of Heresy, made pertinacy a requisite to a man's being formally an Heretick, and said that Pertinax est qui non est paratus Captivare intellectum & rationem suam omnem Sacrae Scripturae, adds, Hae­reticus igitur potest esse quis materialiter, dum assensum praebet erro [...]i perni­cioso, vel ex simplici facilitate out temeritate haereticis or dendi qui sub ho­nestâ aliquâ specie fallunt, vel ex ignorantiâ qui [...]ormaliter non est haereticus: cum pertinacia & obstinatio animi deest, at (que) adeo pro simpliciter haeretic [...] non est babendus. Concordant with these measures of Ames, have I ob­serv'd those of some ingenuous Roman-Catholick Writers, who have de­clared that they will not pronounce all Protestants to be Hereticks formaliter.

And it is therefore no wonder that such their Judgment of Charity hath been retaliated by some of the most Renowned Divines of the Church of England, viz. the Lord Primate Bramhal, Bishop Taylor, Dr. Hammond and others, who have deny'd to pronounce the worshipping the Host to be formal Idolatry; that is to say, to be not so at all in reality, since we know that according to the trite Rule, forma dat esse.

And thus that Primate in his Schism Guarded saith very well for that purpose, p. 57. Every one who is involved materially in a Schism is not a for­mal Schismatick, more then she that Marries after long expectation, believing and having reason to believe that h [...]r former Husband was dead is a formal Adulteress, or then he who is drawn to give Divine Worship to a Creature by some misapprehension, yet addressing his Devotions to the true God, is a for­mal Idolater. And having there cited S. Austin of Heresy, He who did not run into his error out of his own over-weening Presumption▪ nor defends it per­tinaciously, but receiv'd it from his seduced Parents, and is careful to search out the truth, and ready to be Corrected if he find it cut, he is not to be repu­ted among Hereticks; he saith, it is much more true of Schism, that he who is involv'd in Schism through the error of his Parents or Predecessors, who carefully seeketh after truth, and is prepared in his mind to embrace it when­soever he finds it, he is not to be reputed a Schismatick.

I know Azorius de Iuramento gives his Judgment well in thesi, That when a Law is changed to which a man is bound by Oath, tho he is thereby materially discharged, yet formally he is bound in respect of his will: for if ever he actually assents to the alteration, he is really perjured. And so leaving it to such who were Men of great Knowledge and Consideration, and had took the Oaths, and were ready to promo'e a new Law for altering the hereditary Monarchy; to think of the danger they incurred of the for­mal guilt of that Crime, I have more Charity then to conclude all the rash, and the incogitant, and the weak, and the seduced by the fantastick Interpretation of the Oath, to have been perjured.

But as about the year 1164. Thomas Archbishop of Canterbury was at a Council held at Northampton accused by the King of Perjury, and Condemned as guilty of it, because he had not observ'd those English Customs that he was sworn to (as I find Francisc. Long. de Concil. p. 806. Col. 1. cited for it) so if you have taken the Oath of Supremacy, and Sworn to defend all the Pri­vileges and Preheminences granted or belonging to the King, his Heirs and Successors, and united to the Imperial Crown of this Realm, and are of opinion that one of the Privileges of those Heirs and Successors is to succéed to that Crown as it comes to their turn according to Proximity of Blood, and by their inherent Birth-right, and as the Hereditary Succession ju [...]e Coronae is setled by the Common Law of England, I shall tell you that the Pious and profound [...]ly Learned Divine Dr. Hicks, who hath study'd this Point as much as any man, hath in his Writings told you that having [Page 18] taken this Oath, you could not honestly consent to a Bill of Exclusion, which would have deprived the next Heir (and in him virtually the whole royal Fa­mily) of the chief Privilege and Preheminence that belong'd to him by the Common Law of this Realm, &c.

Your Curiosity (I believe) hath led you to read over his learned Io­vian, and to observe what he there saith in his Preface, that some Men did pervert the meaning of the word Heirs in the Oaths of Allegiance and Su­premacy, from its common and usual acceptation to another more special, on purpose to elude the force and Obligation which otherwise they must have had on the Consciences of the Excluders themselves.

But it is not only the Authority of this single great Divine that I can lay before your thoughts for the rendring the Attempt of the Exclusion con­trary to our Oath: but I can direct you to the censure of the three Estates of a Loyal Nation, and of His late Maj [...]sty in the case. For the Oaths in Scotland, binding the takers both to the King and his Heirs and Successors as ours do here, I can tell you that in the Third Parliament of King Charles the Second, Aug. 13. 1681. you will find the Act in these words, viz. The Estates of Parliament considering that the Kings of this Realm deriving their Royal Power from God Almighty alone, do succeed lineally thereto, according to the known degrees of Proximity in Blood, which cannot be interrupted, suspended, or diverted by any Act or Statute whatsoever, and that none can attempt to alter or divert the said Succession without involving the Subjects of this Kingdom in Perjury and Rebellion, &c.

I know that during the late turbid interval of the Nation, some Loyal men of the Church of England were so much misguided, as to think that be­cause de facto Parliaments have heretofore directed and limited the succes­sion of the Crown in other manner, then in course it would otherwise have gone (as the words in the Printed Exclusion-Bill were) they might therefore of right do so again; notwithstanding they knew that after the Parliament of King Iames to prevent the Right of Succession from fluctuating any more, had justly recognized and declared, That the Imperial Crown of this Realm, and Rights belonging to the same, did by inherent Birth-right and lawful and undoubted Succession descend and come to him, as being line­ally, justly and lawfully next and sole Heir of the Blood Royal of this Realm, it did afterward by a New Oath of Obedience or Allegiance, oblige mens Consciences both to the Crown and the hereditary lineal Succession, and notwithstanding they knew that that Parliament had took care of con­tinuing the Obligation of the Oath of Supremacy for the bearing Faith and true Allegiance to the King, his Heirs and lawful Successors, and to assist and defend all Privileges, and Preheminences and Authorities granted or belonging to the King, his Heirs and Successors, &c.

But I doubt not but the Consciences of the Considerate Loyal, now ex­postulating with them in the cool of the day, whether they did then well in being angry with the Imposers sense of their Oaths, and in not penetrating into the Obligations thereby incurred; and particularly in not weighing whether such who had taken those Oaths, and yet by Projects and Expe­dients would have banish'd the Heir even after he should come to be Actual Successor from the effects of their Sworn Allegiance, and of their Sworn Assistance and Defence of all Privileges and Preheminences and Authorities granted, or belonging, &c. had not visibly out-ran their Oaths, they will recollect the late dreadful want of tenderness for the observance of the same.

[Page 19]It will be hard for many men on a serious Self-examination to reflect otherwise on themselves, after that Sir W. I. himself (as the Printed Speeches in the Oxford-Parliament have it) call'd an Expedient of that kind Iesuite's Powder, and mentioned that on the Heirs coming to the title of King, the learned Lawyers say, that by 1. H. 7. all Incapacity is taken away by the Possession of the Crown, and after that another learned Lawyer had there said, I owe the Duke Obedience if he be King: but if he be King and have no Power to Govern, he is the King and no King: and had before said, That an Act of Parliament against Common sense is void. To make a man King, and not suffer him to exercise Kingly Power, is a Contradiction.

And I am sure 'tis a Contradiction to nothing more then our Oaths.

I desire not by referring to the breach of those Oaths to touch the tender­ness of any man's sore place, or to reproach him as to what he hath done for the time past; but to promote the tenderness of his Conscience: and that his Conscience may not reproach him for the time to come, for not assisting and defending all Privileges and Preheminences belonging to the Crown.

When I consider the noble and vigorous Loyalty that your self and others who were mistaken in the Point of the Exclusion, have since shewn in the Service of His gracious Majesty, and the great Care that you and they in the Post where you were▪ took in the Settlement of his Revenue, and of avoiding the Character of those of Israel, who brought their newly anointed King no Presents; and your read [...]ness at his call to venture your life for the sup­port of his Crown: and do observe in you and them a fix'd Preparation of mind for the defence of every Privilege, that is made to appear to you as belonging to the Crown, and that your Loyalty like a bone well sett is the firmer for having been broken, I account that the Si non e [...]rasset, fecerat ille minùs, may be apply'd to you, and that after His Majesty's Pardon and the Series of your Heroical Actions of Loyalty in his Service, you ought by all equal Judges, according to the Instance I mention'd before, to be absolv'd, as who in all things have approved your selves to be clear in this Matter.

And I believe you being one of the Church of England, the Adherents to which do now as generally call themselves The Loyal, as the Indepen­dents did once vocife [...]ate themselves to be The Saints, and the Principles of which Church do enjoyn Remorse and Penitence, and rending of the heart, and as much tenderness to any who have disrobed the Crown of any of its Rights and Privileges, as was in David when his heart smote him because he had cut off the skirt of Saul's Garment, and whose Divines do not only Preach the Doctrine of Non-resistance, but whose Oaths bind to it, and that of Supremacy binding to a positive Assistance of all Privileges, &c. your [...]nlighten'd Conscience will be your constant Remembrancer against any relapse.


I thank you for thus gently leading me by the hand to such a height of Noble thoughts relating to that Oath, as from whence I am able to look back with grief on my past aberrations through inadvertence, from what my Oath obliged me to in relation to the Support of the hereditary Mo­narchy (and concerning which Obligation, the Casuistical Discussion you sent me did sufficiently illuminate me) and to take a prospect into my duty that lies before me to assist and defend to my Power all Iurisdictions, Privi­leges, &c. granted or belonging to the King's Highness, &c. or united and an­nex'd to the Imperial Crown of this Realm.

I am sensible that as some vain Swearers in common Discourse, will upon their being occasionally reproved for it, be apt to swear that they did not [Page 20] swear, and that as there are Fools that say in their Souls that there is no God, and that there is no Soul; so there is a sort of careless men who having taken this great Promissory Oath, will yet by their Actions deny their having sworn to assist and defend some of those Privileges, and likewise be apt to say in their hearts they have not invoked God as Witness and Revenger in the case of that Oath, and that they are not absolutely bound by it, or but only by their reserved sense; or as if a man representing his Country, he were only to take a kind of formal Oath in animam Domini, and not to venture his own Soul.

But for my part, I account it as vile to be perjured in a solemn Promis­sory Oath as in a judicial Assertory one; and shall hereafter think my self as much bound to use all exactness and tenderness in the recollection o [...] my thoughts after a Promissory Oath, as every Man of Honour doth before an assertory Oath when he is a witness in a Court of Law. And I think that it is only the multitudo peccantium about solemn promissroy Oaths, as for example, about the promised assistance and defence of the Privileges of the Crown in the Oath of Supremacy, that diminisheth the Shame and [...]gnominy of mens being either through corrupt affections or incogitancy (and the crassa negligentia which the Law makes to be dolus malus) Vacillant or Con­tradictory in the Series of their actings promised, or through lachesse or subdolcus pretences withholding their performance of part of what they obliged themselves to do; and that keeps the populace from a nauseous look­ing on them as falsarii, and as much as on Witnesses produced in Courts, who in the things asserted by their Testimony are for want of precaution of thought, varii & vacillantes and contradictory to themselves, and ming­lers of Falshood with truth, and who conceal part of the whole truth they were to depose.


There is another thing that makes the Moral offices required in an Oath Promissory call for some kind of Consideration, that an Oath Asser­tory doth not: for we are not to depose o [...] Matter of Law, but only of Fact: but in the Promissory parts of the Oaths of Supremacy and Allegiance our thoughts are obliged to have regard to Matters of Right and Law. We are to our Power to assist and defend all Privileges and Preheminences GRANTED or BELONGING to the King, &c. and which ARE united to the Imperial Crown of this Realm.


But by this means, while you would have men keep up the ease of their Consciences by such assistance and defence, will not they be put to it to make their lives uneasy, by buying Law-Books, and being Students of the Crown-Law, and of the extent of the Regal rights; a thing never inten­ded by the Makers of the Laws for those Oaths, and whereby such who are to assist and defend and Rights of the Crown by Action in Land or Sea­Service would be hinder'd therein by Speculation?


No man need amuse himself about any such matter. Nor are our Princes, who by their Coronation Oaths oblige themselves to defend all our rightful Laws and Customs, bound thereby to study the Report-Books of the Law concerning the Rights and Properties of their Subjects, and whereby the time of Princes would be taken up from defending them. And I shall tell you, that tho all men are morally bound to frame the best Conceptions, and make the truest representations of the Divine Nature they can, and which by the measures of the Scripture [...]s comprehended under our Duty of glorifying God; yet not to study the Controversies be­tween the Remonstrants and Contra-Remonstrants about the absoluteness of the Divine Decrees, and Dominion, or whether God according to his abso­lute Dominion can torment an innocent Creature.

[Page 21]And thus tho we are bound to honour God's Vice gerents, and to assist and defend their Rights, Privileges, and Preheminences we are not to con­sume our whole lives in the investigation of Truth in the Moot-Points about the same.

But as to this thing, that great Casuist of the Age, Bishop Sanderson, may help to set us right in his Third Lecture of Oaths, Sect. 17▪ where putting the Case when Subjects are required to take an Oath for Preservation and Defence of Laws and Liberties, Privileges, Prerogatives and Preheminences of some Superior Power, as of a King, a Common-wealth, or Lord Paramount, such as are among us, the Oaths of H [...]mage, of Royal Supremacy, &c. he saith, No man denies these Oaths to be lawful or obligatory: but in respect of the frequent incertainty of the Laws whereunto they relate, it may very well be do [...]bted how far they oblige. Doubtless the Subject to his Power is obliged to defend all Rights which appear either by Law or Custom Legitimate, whe­ther defined by the written Law, or in force through long use of time, or prescription, that is, so far as they are known, or may morally be known. But he is not equally obliged to the observation of all those which are Controverted or doubtful, especially since Powerful men are accustomed to stretch their ted­ders, and leap over the Land-marks of their Neighbours, not contenting them­selves within the bounds of their own Right. Nevertheless a Subject ought always to be prepared in Mind so soon as the justness of those things which are doubtful shall appear, to a knowledge and defend them.

It may be hence rationally deduced that such who are call'd to the Helm of State, or are Members of Parliament, if any Matters relating to any Iurisdictions, Privileges, and Authorities granted or belonging to the Crown shall come in question before them, are by virtue of the Oath of Supremacy bound to endeavour to know whether those Jurisdictions, Privi­leges, and Authorities are granted, or do belong to the Crown, that is, so far as they are known or may morally be known before they refuse to de­fend and assist them: and much more before they shall do any act of offend­ing or resisting the same, and before they shall entertain any hard thoughts of their Prince for claiming this or that Privilege. And where the right of any Iurisdictions, Privileges granted or belonging to the Crown is not Con­troverted or doubtful, that Oath binds them immediately to assist and defend the same, and not so much as to move any thing against them, except in some such case as I shall presently mention.


Did ever any Parliament presume to destroy, or offend or usurp upon any Privilege, or Preheminence, or Authority, of which the Right, as belong­ing to the Crown, was not controverted?


Yes, the long Parliament of 40 did so. The Power of the Militia was acknowledg'd by the Parliaments Petition at Windsor to be a flower of the Crown. And therefore the Royal Martyr's dying Breath might (one would think) be Thunder to their Consciences, when in his Speech on the Scaffold, he said, I never intended to intrench upon their Privileges. They began upon me. It is the Militia they began upon. They confess'd that the Militia was mine; but they thought fit to have it from me.

No doubt such men intended to entrench on the King's Privileges and Preheminences, and they intended to violate their Oath of Supremacy.


Did they offend any other Uncontroverted Rights of the Crown?


Many more then I have now time to name; but cannot forget the fatal Consequences of their outraging one of those uncontroverted Rights which was at the King's Pleasure to Prorogue or Dissolve Parliaments, by putting such incessant hardships on that Pious King to engage him to pass the Act that that Parliament should continue till both the Houses did con­sent [Page 22] to the dissolution of it; and of which Mr. Hobbs in his Behemoth, saith, that it amounted to a total Extinction of the King's Right, in case that such a grant were valid, which I think it is not, unless the Sovereignty it self be in plain terms renounced, which it was not.

And he having said, That the King signed that Bill the same day he signed the Warrant for the Execution of the Earl of Strafford, and having rais'd the Question, Whether the King could not have saved him by a Pardon, and said, that he would have done it if that could have preserv'd him against the Tu­mults rais'd and countenanced by the Parliament it self, doth mind me of the horror of those days, when they who were Sworn to assist and defend the King's Privilege and Preheminence in Pardoning any one, tho he knew him justly Condemned to dye, did endeavour by Tumults to oppose his Par­doning one whom he thought not to have deserv'd Death.

That Royal Privilege was in like manner by that Parliament trampled on in the Case of the Pardon of Archbishop Laud.


I shall here by the way ask you if you did not once tell me that the most profound Observers of the Affairs in Ireland; had agreed in it as their firm Judgment, that the Irish Rebellion had never happen'd if the Parliament of 40 here had not meddled in the Case of the Earl of Strafford, and occasion'd his removal from being chief Governour of Ireland.


I shall by the way answer you, that I did tell you so, and that they judged that the Character of that Earl's great Wisdom and Courage, and Activity, and of universality in his Correspondencies, had gain'd such an Ascendant over the Genius of the Irish, that if he had continued Lord Lieutenant of that Kingdom in his former Power, they would not have ven­tured to rebel.


You have instanced in Uncontroverted Privileges of the Crown that that Parliament did offend and resist, by their putting such incessant hard­ships on their King, as your words are; and it was folly as well as breach of their Oath for them thus to strike at the Pardoning Power of the Crown that is the Privilege both of King and People. Yet let me ask you whe­ther you account that he who in any case shall endeavour that by the Le­gislative Power any uncontroverted Iurisdiction, Privilege, Preheminence, or Authority granted or belonging to the Crown may be alter'd or restrain'd in its exercise, breaks his Oath? Did that Parliament do so who made the famous Act for barring the known Privilege of Nullum tempus Occurrit Regi, I mean, that glorious Act of 21o of King Iames the First, C. 2. of which the Title is, Conceald Lands shall not be Recover'd, unless it may be proved that the King had title to them within 60 years; i. e. 60 years before the 19th of February in the 21st year of King Iames the First, which was the day of the beginning of that Parliament, and on which Statute my Lord Coke hath an excellent Comment in Instit. 3. C. 87. against Concealors (turbidum genus hominum) and all pretences of Concealments whatsoever; and on occasion of which Act it is yet acknowledg'd in the Book call'd, The Court and Character of King James, written by Sir A. W. and Printed A. 1650. that that King loved good Laws, and had many made in his time, and in his l [...]st Parliament, for the good of his Subjects, and suppress'd Pro­moters and Progging Fellows, gave way to the Nullum tempus, &c. to be confined to Sixty years, which was more beneficial to the Subjects in respect of their quiets, then all that Parliaments had given him during his whole Reign?

Or did the late Kings Loyal long Parliament do so in their obtaining the Act for the Habeas Corpus, and others that might be named?

[Page 23]

Having premised it to you that those words in the Oath of assisting and defending ALL Iurisdictions, ALL Privileges, &c. are operative words, and of strict Interpretation, and whereby we stake our Eternities to assist the King's Temporal Rights, and invoke God so to help or assist us as we shall assist all those Privileges, and that the Prince and the Church being look'd on as Minors, the breach of an Oath to defend the Privileges of the King must appear to common sense as odious as if any Guardian of a Minor did break an Oath to defend his Person and Interest, or did take part with any to destroy the Minor's Rights; I shall yet be so fair as to tell you that I do not so account it: provided that he who shall do so shall have a moral certainty that the Prince being sensible that the alteration or restraint of such Privilege will be very beneficial to the Subjects both in the present and future times, and necessary to the enabling them the better to support the Crown, hath signified his desire of the same, and doth so desire it: or if he knoweth not his Princes so desiring it, believes that the Cogency of the Rea­sons he hath humbly to offer for such alteration being made, is such as may Incline others to supplicate the Prince to consent to it, and the Prince so to do.

Yet in this latter case, if afterward the Sovereign notifies his desire of the continuance of such known Privilege, I am then by my Oath to assist and defend the same, and am not to the Cogency of my Reasons to add that of Importunity. For there is a par or proportion between importunity and force; whence we see that according to the King's Ecclesiastical Laws, in case of a former will, a latter gain'd by importunoe preces in the time of the Testator's Sickness, is often adjudged void. And as I am not by impor­tunity when my Princes Affairs are in a Sickly state, or that the Die of War hath ran against him abroad▪ to press and tire him then into a parting with his known Privileges, so neither with a Salvo to my Oath, which binds me to assist and defend them, can I if I find his Judgment or Mind sickly, lay Temptations before him to buy him as it were out of a Privilege that is just and adviseable for him to keep▪ I am neither to starve nor pamper my Prince out of such a Privilege. Nay more, if my Prince did by any Error part with any such Privilege, as not knowing the same to be inhe­rent in the Crown (as in the Case of an Answer of the Royal Martyr drawn by one of his Ministers not deeply vers'd in the Law, to some of the Parliaments Propositions, by which Answer he is acknowledg'd to be one of the three Estates) I, who know that the Privilege and Preheminence inhe­rent in his Crown is to be above them all, and have in the Oath of Supre­macy Sworn that the King is the only Supream Governour, and so none Co-ordinate, or equal to him, I am to take no advantage of that error, but am still to assist and defend such his Preheminence.

And if ever a Prince did by fear part with such Privilege or Preheminence, there being a par between fear and force, according to that Law of the Proetor in the Digests, Quod vi aut metu factum est ratum non habebo (and in which Law, as Baldus saith, the Proetor was inspired by the Spirit of God) I am not only not to take any advantage of such act of the Prince done by fear or force, or to upbraid him therewith, but am still to assist and defend such Privilege so derelinquish'd by him, and am to account the same belonging to him as the word is in my Promissory Oath, and to account him still in Law possess'd of the same, according to the rule of Possessio etiam animo retinetur: and which is justly apply'd in the Case of any one who in a Storm at Sea throws his Goods over-board to lighten the Ship.

His late Majesty therefore did but right to himself, when in his Declara­tion of the 25th of October, 1660. Concerning Ecclesiastical Affairs, he took [Page 24] notice how some had caused to be Printed and Publish'd in England a Decla­ration before Printed in his Name when he was in Scotland, (i. e. referring to the Declaration Printed at Edenburgh, 1650.) and saith thus of it, viz [...] Of which we shall say no more, then that the Circumstances by which we were enforced to sign that Declaration, are enough known to the World: And that the worthiest and greatest part of that Nation did even then detest and abhor the ill usage of us in that particular when the same tyranny was exercised there by the Power of a few ill men, which at that time had spread it self over this Kingdom, and therefore we had no reason to expect that we should at this season when we are doing all we can to wipe cut the memor▪ of all that hath been done amiss by other men, and we thank God have wiped it out of our own Remembrance, have been our self assaulted with those rep oaches, which we will likewise forget.

And it was goodness worthy the great Soul of a King to forget the Out­rages of such who did strip their Political Father of his Power, and then reproach him with his nakedness.

I may here likewise tell you (and not mal a propos) how much the patience and long-suffering of the same Prince was exercised in a late Conjuncture that so much eclipsed his Prerogative in the Case of the Earl of Danby's Par­don, and when the Commons did set up against it somewhat in his Father's Answer to the 19 Propositions before mention'd, that nothing but the tempest of the Age in the Parliament of 40 could have occasion'd, viz. Since there­fore the Power legally placed in both Houses of Parliament is more then suffi­cient to restrain the Power of Tyranny, &c. But because a Parliament so perpetuated as that was, did prove more then sufficient to restrain pretended Tyranny, and real just Government, will a considerate man say any such thing now, when the breath of Prerogative can dissolve them in a moment, and in that moment all their thoughts perish, and all the high-flying thoughts that would soare above Imperial Power be found dead in the Nest?

And I may here tell you, that in the Answer of some Nonconformists to Dr. Stillingfleet's Sermon (an Answer Printed in London in the year 1680. during the ferment about the Plot, and wherein they desire Indulgence) I think their attacquing the Service on the Gun-Powder Treason Plot, in thanking God for Preserving the King and the Three Estates of the Realm assembled, by saying, That the late King made no scruple in his Answer to the 19 Propositions to reckon himself one of the three Estates, was a thing that on recollection they will judge ought not to have been done.

But I am here further to tell you, that though it may be consistent with our Oath in some such case as was mention'd, to endeavour the altering by the Legislative Power some uncontroverted Privileges of the Crown, and in such a way as I have mention'd, I likewise wish you in your thoughts to make a distinction of those Privileges or Preheminences belonging to the Crown, that are absolutely Essential to its Preservation, and to that of the whole Realm, and which are by God and the Law put as a Depositum into the hands of Kings, and the removing of one of which would have the effect of taking a Stone out of an Arched Building, and such as no Sove­reign Princes can be without; and such as our Princes have in their flou­rishing Reigns to the great content and happiness of their People always exercised, and Rights (as the late Earl of Shaftsbury said of that of the Flagg) that our Princes cannot part with: and Privileges that are not such: and two of which former sort of Privileges, and which are parts of the Fundamental Laws of the Kingdom, I account we are expresly in the Pro­missory Clause of that Oath Sworn to defend, and assist, namely of the [Page 25] lineal Succession to the Crown, and of the King's Prerogative; and of which Prerogative we have this Description in Blount's Law-Dictionary, That the Prerogative of the King is generally that Power, Preheminence, or PRIVILEGE which the King hath over and above other Persons, and above the ordinary Course of the Law, in the Right of his Crown: And then adds, Potest Rex ei, lege suae dignitatis, condonare si velit, etiam mortem prome­ritam. LL. Edw. Confess. cap. 18. and then saith, that Spelman calls it the L [...]x Regiae dignitatis.

The Author of the Law-Dictionary had there his eye on the Law of Edward the Confessor, where under the title of Misericordia Regis & Par­donatio, it is declared, that si quispiam forisfactus (which the Margin inter­prets rei Capitalis Reus) poposcerit Regiam misericordiam pro forisfacto suo, timidus mortis vel membrorum perdendorum, potest Rex ei, lege suae digni­tatis, condonare si velit, etiam mortem promeritam; ipse tamen malefactor rectum faciat in [...]quantumcunque poterit quibus forisfecit, & tradat fide­jussores de pace & legalitate tenenda, si vero fidejussores defecerint exula bitur à Patria.

And I remember there is a famous Act relating to the old Privileges and Prerogatives of the Crown and to their resumption by the Crown, viz. The Act of 27. H. 8. c. 24. call'd, The Recontinuing of certain Liber­ties taken from the Crown; and it begins with saying, that whereas di­vers of the most ancient Prerogatives and Authorities of Iustice apper­taining to the Imperial Crown of this Realm have been severed and ta­ken from the same by sundry Gifts of the King's most Noble Progeni­tors, to the great diminution and detriment of the Royal Estate of the same, and to the hinderance and great delay of Iustice; and thereupon saith, for Reformation whereof be it Enacted by Authority of this present Parliament that no Person or Persons, &c. shall have any Power or Au­thority to pardon or remit any Treasons, Murders, Man-slaughters, or any kinds of Felonies, nor any Accessaries to any Treasons, Murders, &c. or any Out-laries, for any such Offences aforesaid, committed, perpe­trated, done, or hereafter to be committed, done, or divulged by or a­gainst any Person in any part of this Realm, &c. but that the King's Highness, his Heirs, and Successors, shall have the whole and sole Power and Authority thereof, united and knit to the Imperial Crown of this Realm; as of good RIGHT and Equity it appertaineth, &c. and then orders all Writs in a County Palatine to be made in the King's Name, &c.

That Statute doth give you a Prospect of great variety and use in order to the Settlement of your thoughts about some things in your Oath. You there see the Natural recourse of the Royal Rivers of Prerogative to the Oce­an from whence they came; and when you there find that the Crown could communicate to Subjects the exercise of the Prerogative of Pardoning Murder, however restrain'd by ACT of Parliament, and all the dreadful Disabilities incurr'd by Out-laries for Felony and Treason, you are not to wonder at any ones telling you, that the King himself hath the Privilege of Pardoning a Disability incurr'd by Law for Heterodoxy in Religion: and especially when you shall see the whole and sole Power of Pardoning the same united and knit to the Imperial Crown of this Realm, as of GOOD RIGHT and EQUITT appertaineth. And according to those words in your Oath about your defending all the Rights and Privileges united and annex [...]d to the Imperial Crown of this Realm, you are to defend that great Royal Power of Pardoning, and which our Ancestors in Harry the 8th's time thought so essential to Publick Justice.

[Page 26]And therefore you will still do well to remember that your sworn defence and assistance of all the Privileges and Preheminences of the Crown doth more particularly bind you in the Case of these fundamental ones to put no hardship on our Princes, nor yet to use any softness of Allurements to tempt them to renounce them. The Countryman, who being by his Physician prescribed some Grains of Laudanum, and desiring a greater quan­tity of the Apothecary, and saying, Shall I have no more for my Money? and whereby he would have been Poyson'd, was not less Sagacious then such Senators who by Subsidies would engage any Prince to part with so much of his Prerogative as would destroy the Body politick.

Alas; as for several uncontroverted Rights of the Crown of an inferiour Nature, as our Princes have been ready enough in all Ages to part with them for the good of their People, and their own promoted thereby, and have had grateful returns from their Parliaments by Subsidies on such an account, so none need fear but that in all future times succeeding Monarchs will that way be as indulgent as the former ones were; and that as Solomon saith, the King himself is served by the Field, and the Plough having here variously supported the Throne, and particularly by the robust Infantry it hath yielded to serve the Crown in Arms; the keeping up of the Spirits of our Yeomen (and likewise of those who Plough'd the Sea) by the Liberty our Laws allow'd them, and the Crowns being no gravamen to the Body of the People, and only to the Royal Heads that wore it, was and will be always necessary in order to the keeping up the being of the Nation.

There is therefore scope and encouragement enough in England for a man who is a Candidate for a Patriot's place, to carry it by being a Con­sessor of unmercenary Loyalty, and arriving at honour, or the consentiens laus bonorum by being a Loyal Patriot: and there is as good popular air for any one to feed on who will assert the just Liberties and Privileges of the English Subjects as any Greece or Rome afforded: and there was no need for any one to move for a Statue for the Hero who promoted that old act against old Concealments in King Iames the First's time, or the late one for the Habeas Corpus; for such an one must find his Monument in the Hearts of all the Subjects of England. Nor was there ever Prince more Cordially and Passionately concern'd for the Liberties of the People of England then the Royal Martyr: and who fell reverâ as their Martyr according to his words on the Scaffold, and where he said, If I would have given way to an Arbitrary Power, to have all Laws changed according to the Power of the Sword, I needed not to have come here.

His style could not there recede from that of his Printed Declarations, and in one of which, for Example that in 41. he thus mentions his hopes, viz. That God will yet make us a great and a glorious King over a free and a happy People.


If you had not thus coupled the LOYAL Man and the PATRIOT together in your Discourse, I should have ask'd you whether you would have Men throw up the many good Laws that the Parliament of 40 ob­tain'd for the ease of the People by partly importuning the King?


I assure you, I shall never give you or any one else cause to think that I have not a high value for some of those Laws: and do now shew you my value of them, by telling you that I do not look on them as the off­spring of any factious importunity, but as the just and natural issue of the goodness of our Prince: and you will find they were so, if you consult the Declaration I last cited, and where his never to be forgotten words are, viz. That as We have not refused to pass any Bill presented to Us by Our Parliament for redress of those Grievances mentioned in the Remon­strance, [Page 27] so We have not had a greater Motive for the passing those Laws then Our own resolution (grounded upon our Observation, and understanding the State of Our Kingdom) to have freed Our Subjects for the future from those Pressures which were grievous to them if those Laws had not been propounded. which therefore We shall as inviolably maintain, as We look to have Our own Rights pre­served, &c.

And in his Declaration of August 12. 1642. he saith, Would men enjoy the Laws they were born to, the Liberty and Property which makes the Subjection of this Nation famous and honourable, with all Neighbour­ing Kingdoms? We have done Our part to make a Wall of Brass for the perpetual defence of them, while these ill Men usurp a Power to undermine that Wall, and to shake Foundations which cannot be pulled down, but to the Confusion of Law, Liberty, Property, and the very life and being of Our Subjects.


You have named then two fundamental Privileges or Rights of the Crown, which by the Oath of Supremacy we are bound always to assist and defend. And I am to tell you frankly and without going to hide my Trans­gression, as did Adam; that though I have often and in several Capacities took that Oath, yet on the very day I last took it, and while the very e­cho of those words, so help me God, was audible in the air of my mind, and before the Ink was quite dry that recorded my Oath, I without consi­dering that as 'tis the Privilege of our Prince that his Heirs by the Right of the Crown should succeed him, so it is the great Privilege of those Heirs to succeed; I was yet so far from assisting and defending that Privi­lege, that I immediately endeavoured to subvert the same, and tho my Prince's Mind was notify'd to me for my not so doing. Nay, further to make you my Confessor, I was so far gone in a Lethargick carelessness of my Oath, that when I saw the excluding the title of the Lawful Successor was not likely to pass into a Law, I was tempted to endeavour by Expedients, as if I had took an Oath and no Oath, to make him a King and no King. And God having given me space to repent of my past incogitancy in relation to that Oath, it being now brought before me in the Course of Providence to assist and defend another of the Preheminences which my Prince tells me is granted and belonging to the Crown, and which you have mention'd as his Prerogative above the ordinary Course of the Law, in the Right of his Crown, and that he first made use of an emergent Necessity, I will through the Divine assistance use all the means I can both of serious sedate and unpre­judicate Consideration, and of the Consilium Peritorum, and Discourse and Communication with others whom in meekness and lowliness of mind. I am obliged to esteem better then my self, to fix my own Iudgment of Discretion in this matter: and will not deny to assist and defend this Preheminence of my Prince in particular without being morally certain that it is not granted or belongs not to him, and will take the best care I can to effect that by any that by any lachesse or omission of the great Duty of Consideration, I may give no man occasion again to exercise his Charity in not pronouncing me to be formally perjured; and that after my Prince hath pardon'd me my at­tempted excluding him from the Throne, I may not endeavour the disa­bling him from any one of his Rights while he is on it (for so the style of the Exclusion▪Bill ran, and it might have been as well call'd the Disabling Bill, according to the words there, shall be Excluded and DISABLED, and is hereby Excluded and Disabled, &c. from all Titles, Rights, Prero­gatives, &c.) and rights that I have sworn to defend.

[Page 28]The Lord Chief Justice Vaughan, (who was a man of the first-Rate Talents, if you consider both his natural and acquired parts) doth yet in Thomas and Sorrell's Case in his Reports call the King's Power of Dispen­sing, dark Learning, and saith it seem'd so to him, tho after so many Argu­ments in the Case. And as that great Man found it dark, so I think he left it such in some measure, however yet so many daring Sciolists (and who never look'd on a Law-Book in their lives) will pretend to O [...]niscience in the Matter, and perhaps out of a vain Jealousie of the King's Omnipotence being thereby asserted.

But I know your thoughts have travail'd far in this dark Learning, and wherein you confess'd to me once, that you had receiv'd some Illumination from that Iudge's Argument, and as likewise you had from a Manuscript Report of that Case of Thomas and Sorrell, containing an account of the things urged by the other Iudges, and by the Councel concern'd in that Case, and which are not mention'd in Sir I. Vaughan's Report of it, and where he relates little but his own Argument. He was a fair Reasoner and frank Discourser on all occasions, and not byassed by any mercenary hu­mour: and according to that Candour you have often commended in him, and which I have likewise experimented in your self, let me now again make use of it in your imparting to me your thoughts in order to the Dire­cting and Setling of mine as to the observance of my Oath in this particular.

And tho I know we live in a crooked and perverse Generation, wherein so many are at the same time decrying both summum jus and Persecution, and too all relaxation of the Laws; and their Spirits lie like that Haven, Acts 27. 12. toward the Southwest and Northwest, two opposite Points, (and one would scarce think it possible that mens Spirits could be so extremely wind­ing and crooked, and thus opposite to themselves) and while too they are crying out that any lawful Dispensing with the Laws establish'd, is Contradictio in adjecto: yet that Lord Chief Iustice's Report hath shew'd me the legality of the Dispensative Power in many particulars, so far as to excite in me a desire to know more of it, and to move me to pity the ignorance of my Countrymen, who thus cry out of Contradictio in adjecto, and not knowing what a Dispensation in Law means, will fall under that censure of the Monk, viz. Corrigis magnific [...]t & nescis quid Significat, and of that Adage in Eras­mus, Stultior Choraebo, who not being able to reckon in Numbers beyond five, would yet undertake to Compute the numbers of the Waves in the Sea, oras I may say in the words of S. Paul, desiring to be Teachers of the Law, understanding neither what they say, nor whereof they affirm: yet I assure you the Vogue of the Mobile will no more influence my thoughts about the Motion of the Laws by Dispensation, then it would about the Motion of the Earth, and who would take it very ill if they should be told it moves as fast as a Bullet out of a Canon, because they do not perceive it.

A late great Philosopher of our Country hath told us, That every day it appeareth more and more that years and days are determin'd by Motions of the Earth; and another hath from the Diurnal and Annual Motion of the Earth endeavour'd to salve the Flows and Motions of some Seas, illustra­ting the same by Waterin a Bowl arising or falling to either side, according to the Motions of the Vessel: but perhaps should a Prince in his Writings inculcate the Philosophy of the Earths motion, the populace would have Fears and Iealousies of the instability of the Foundations of their Houses and Towns, and of the shaking of their Property, and as they have by Dispensations, and they would be apt to quote Scripture against such Mo­tion: [Page 29] nay, tho they should be told that such Motion would ennoble the Earth by exalting it into Heaven; and too as Dispensations may be said to do by conducting those to Heaven who believe Humane Laws obliging the Conscience, and yet shall not observe some of them. But as when ever you have heretofore discours'd to me of Copernicus and Galilaeus, and their Hy­potheses, you always found me an attentive Hearer, you will be sure now much more to find me so while you are speaking of any of my Prin­ce's Privileges that I am sworn to defend; for I am now concern'd not to salve Phaenomena, but to save my Soul by keeping my Oath. And in the temper I am in, now my whole Soul is overflowed with the sense of my having so lately through incogitancy violated that part of my Oath that so plainly obliged me to assist and defend the Hereditary Monarchy, I shall be as chearfully attentive to you while you acquaint me with any Obligations resulting from my Oath, as I would be to any one who told me how much I owed another, and at the same time enabled me to pay it.


I shall be most ready when we meet next (which I suppose will be very shortly) to afford you lumen de lumine, in any of the few things I know about this dark Learning. In the mean time I shall observe to you on the occasion of your Mentioning the Lord Chief Iustice Vaughan's Re­port of Thomas and Sorrell's Case, that as it hath through the Divine be­nignity been the frequent Method of Providence to send into the World unheard of Maladies and Remedies in the same Conjuncture of time, and so likewise to make pestiferous Haeresiarchs and learned Confessors of the truth Contemporary, and further when Heaven had made many of the in­quisitive curious to thirst after the knowledge of truth in the works of Nature, then to bless the World with the Discourses and Writings of Galilaeus, Tycho-Brahe, my Lord Bacon, Gassend [...]s and Des Cartes, and Dr. Harvey, who open'd such great Springs of real Learning as refresh'd that noble thirst; so it seems before the Date of His late Majesty's Decla­ration of Indulgence in the 24th year of his Reign, and of the Act about the Test in the 25th year of it, and both which were likely to produce among the Learned so many Inquiries into the Legality of the Dispensative Power inherent in the Crown (and even among the unlearned an Epidemical Di­sease of talking about the same) it came to pass in the course of Providence, that by as Learned Iudges as ever sate on the English Bench, and as Learned Councel as ever appear'd at its Bar, the Learning about the Dispensative Power was ventilated and discuss'd in a Series of several years in the Case of Thomas and Sorrell.

For the Cause began in the King's Bench 18. Car. 2. and was there argued by some of the Great Councel of the Kingdom, and there again argued on both sides by other Councel in Michaelmas-Term, in the 19th year of his Reign. And in Hilary-Term in 25. and 26. Car. 2. this Cause for the weight and difficulty of it was adjourn'd out of the King's-Bench into the Exchequer Chamber, and there argued by others of the Greatest Councel of the Kingdom; and many Law-Books quoted. And the Case was afterward argued by all the Iudges of England at six several Days in Easter, Trinity, Michaelmas and Hilary Terms, viz. by two Iudges each day, and the Iudges differ'd in several Points, and even about the definition or meaning of Dispensation. For so that learned Chief Iustice tells you, and saith, That some of his Brothers defined it to be liberatio à poenâ, and others to be Provida re­laxatio Juris, which (saith he) is defining an ignotum per ignotius, and liberare à poenâ is the effect of a Pardon, not of a Dispensation, &c.

Thus (as I may say) there was a Circumvallation by the Learning which concern'd Dispensing, that encompass'd some time preceding that Declara­tion [Page 30] of Indulgence in the 24th year of his Reign, and some time following both it and the Act of the Test. I shall some other time perhaps entertain you with the Learned Manuscript Report of the whole Case: but shall now tell you that during that Series of years, there was no angry motion in the Sea of the Populace occasion'd by any thing said in any of the Arguments that propp'd up the Dispensative Power; no, not by that mention'd in Keeble's Reports about Thomas and Sorrell's Case to have been said in the Exchequer Chamber by Ellis the King's Serjeant (and whose Opinion was as Currant for Sterling-Law as any Mans of the long Robe.) Viz. That the King may SUSPEND an Act of Parliament till next Session.

And now since it hath thus appear'd out of that Chief Iustice his Report, that at least a sixth part of the Sworn Iudges of the Realm (as he thought) were unacquainted with the meaning of Dispensing, I think it may pass for a Miracle if any great number of the mobile did understand it.

But without their troubling their heads with Law-Books, if they would but mind their English Bibles, and there consult the 12th of S. Mathew, they would soon forbear calling the lawful Dispensing with the Laws establish'd a Contradiction. Our learned Ames on the Priests in the Temple Prophaning the Sabbath and being blameless, observes very well in his Cases of Consci­ence, 1. 3. c. 17. That Praecepta Deiex suâ naturâ nunquam ita Concurrent, at necesse sit alterum eorum propriè violare per peccatum. Quum enim praecep­tum aliquod minus negligendum est, ut majus observetur, minus illud cessat pro illo tempore obligare (that is to say, is dispens'd with) ita ut qui ex tali oc­casione illud negligunt, sint planè inculpabiles, id est non peccent. Matth. 12. 5, 7. And as to that in the Chapter of David's entring into the House of God and eating the Shew-bread, which was not lawful for him to eat, &c. the Lord Bishop of London in his Second Letter to his Clergy, Printed A. 1680. in the Paragraph about The half Communion, occasionally thus observes with great Judgment, That a positive Command of God cannot be disobey'd without guilt, unless on some one or more of these grounds, either, 1. That God dispen­ses with it as he did with Circumcision in the Wilderness. Or, 2. That some Evil greater then the Consequence of the Non-Performance of it will certainly follow: as when David ate the Shew-bread and they that were with him: which depends on that rule of our Saviour, which tho apply'd to the Sabbath, yet ex­tends to all other positive Commands, that man was not made for them, but they for man: Or lastly, in case of incapacity, as the Children of Israels not going up to Ierusalem in the time of Captivity.

And there are other words in a foregoing Chapter of S. Matthew that are still applicable to the Pharisaical ignorance of such as reproach DISPEN­SING as unlawful, Go and learn what that means, I will have mercy and not sacrifice.

But according to the Example of our Blessed Lord in Having Compassion on the multitude, I think you have taken a just occasion for the pitying so ma­ny of your Countrymen who in the present Conjuncture presume to exer­cise themselves in great Matters, or in things too high for them relating to Law and State, and who without enquiring about the modus of Dispensing with the Laws establish'd, wherein Lawyers differ, cry down the thing it self wholly and absolutely as a Contradiction to the lex terrae, and in which not being so all Lawyers agree.

My Lord Primate Bramhal in his Book of A fair Warning to take heed of the Scottish Discipline, shewing in Chap. 6. (that I have before referred to) That it robs the King of his Dispensative Power, doth wish any one averse to that Power no greater Censure then that the Penal Laws might be duly executed on him till he recant his error. And how Penal a thing by the [Page 31] Laws of Nations, it is to alienate the hearts of People from the Prince's Go­vernment, all the great Writers of those Laws, and of the Iura Majestatis have enough shewn.

Moreover how Criminal, a thing of that Nature is in the Court of Con­science, our two great Writers of it, Ames and Sanderson have enough taught us. The Moral offices of Subjects toward their Princes are well set forth in Ames his Cases of Conscience, 1. 5. c. 25. and where he saith. De­bent ex singulari reverentiâ cavere, ne temerarium judicium ferant de ipso­rum administrationes Exod. 21. 28. Eccles. 10. 20. 2 Pet. 2. 10. Jud. 8. Fundamentum hujus cautionis est, 1. Candor ille qui cum erga omnes debet adhiberi, tum singulariter erga Superiores. 2. Difficultas explorandi fontes & causas negotiorum Publicorum. 3. Moderatio illa quâ leves infirmitates & offensiones tolerare debemus, & communi tranquillitati condonare.

And Bishop Sanderson in his 11th Sermon, Ad aulam, shewing the incon­venience of rashly judging things to be unlawful, observes how thereby mens affections are ali [...]nated from one another: and saith he, our own deceitful hearts must needs tell us, how hardly we think of those Men who do those things, we think unlawful: as for example, if we think dressing of Meat and using any recreations to be profanatious of the Lord's-Day, we must needs judg those men who do so use them, to be prophaners of the Lord's-Day; and he further observes, That Governours thereby come to be robbed of a great deal of that honour that is due to them from their People, both in their affe­ctions and subjection: and saith, if we have in our thoughts prejudged any of the things commanded by the Magistrate to be unlawful, our hearts will be sowred toward our Governours, and Men will directly, or indirectly and ob­liquely speak evil of them, &c.

Mr. Hobb's writing of the passions, observes well, That the passion whose violence or continuance maketh madness, is either great vain glory, which is commonly called Pride and Self-conceit, or great dejection of Mind, and that excessive opinion of a Man's own self for divine Inspiration, for Wisdom, Learning, Form and the like becomes distraction and giddiness: the same joyn'd with Envy, Rage, vehement opinion of the truth of any thing contra­dicted by others, Rage, &c. and if the excesses be madness, there is no doubt but the Passions themselves when they tend to evil are degrees of the same. And therefore when we see so many Mechanical Persons, as to the Point of Dispensation in general, not allowing their own Rule of Cuilibet in suâ arte credendum, so many Men and Women, and such whom the Law terms Infants, so rude in the knowledge of the Law, and yet so transported with Pride and Self-Conceit, and such an excessive opinion of themselves for Wisdom and Knowledge, and for being inspired with new light in this dark Learning, none need wish them greater Punishment then such their Distem­per; adding thereunto the Pharisaical humour they have been so much abandon'd to, namely, of their own dispensing with Moral and Eternal Du­ties, and such as I have referr'd to in Ames and Sanderson, and things in their own nature indispensable, and which are the weightier Matters of the Law, while they cry out of the dispensing with Positive Rites and Institu­tions as illegal.


There is another punishment too that I think we may well agree to leave them to, and that is what Grotius cite, out of Plato, viz. poena erran­tis est doceri, but we must submit that to time; and when God pleaseth, the heart of the rash shall understand knowledge. And in the mean while, to the noyse of such People who wilfully shut their eyes, we will stop our ears. You may well suppose me, who have read that Report of Sir I. Vaug­han, lawyer enough to assert and defend according to my oath the Regal [Page 32] privilege of the Dispensative power in General: but as to the modus of it, and whether according to the lex terrae the Crown can dispense with in­capacity incurred by Act of Parliament, I am yet to learn: and am so so­licitous to find out the truth therein, that I shall be glad if at our next meeting you will take the shortest way to my satisfaction therein, tho it may perhaps occasion your for a while striking out of the road of the for­mer discourse we were in.


You know we had made some entrance into the consideration of the promissory part of the Oath, and of the Dispensative power, as promised to be assisted and defended, and as a Privilege inherent in the Crown. But since you will have me take the shortest way I can out of the words in your Oath, to satisfy you about the dispensing with such incapacity as you have mentioned, I must in compliance with your desire refer you to the Asser­tory part of the Oath, when we meet again.

To the Right Honorable the Lord Marquess of Powys, one of the Lords of His Majesty's most Honora­ble Privy-Council.


I Having in p. 57, 58, 59. of the following Second Part occasionally dilated on the Common Place or Notion of Heaven having so often made so much use of the weight of one man in the balance of Government, I esteem'd my dedicating this Part of my Work to your Lordship but common Iustice to your Character, who have been the happy Instrument of God and the King in making so many Englishmen happy.

My Lord, It is but natural when the Just are in Authority, for the People to rejoice (as Solomon tells us) and for them like­wise to anticipate the Honours of the Prince's affording to a Person heroically just, by wishing them. And this is most properly applicable to your Lordship; and that in your Case may be said what Pliny in his Panegyric mentions of Nerva's adopting Trajan, That it was impossible it should have pleas'd all when it was done, except it had pleas'd all before it was done.

My Lord, It was Nature that prompted them to presage with Pleasure the Profit that would come to them from the accessions of Honour to you, and whereby they knew that the height of your Power would be naturally productive of Blessings to them as the height of Hills and Mountains is of Springs for the benefit of the lower Earth, and of those who inhabit it, and which are found wanting in Countrys where there are no Hills. And the Ancient placing of the Statues of Magistrates by Fountains, may be supposed to have been an indication of the Peoples valuing them as the Causers of what did console and refresh them.

My Lord, when I consider how much your Lordship and other just Persons of the Roman-Catholick Communion have in the per­formance of the moral Offices of Natural Obedience to your Prince obliged so many of his Subjects by your being helpful to them a­gainst Oppressions in their Estates and Consciences, I hope I shall not appear too sanguine in my Conjecture of any ferment soon na­turally ceasing about the exercise of the Dispensative Power being a gravamen to Property.

My Lord, I shall in the former of the two remaining Parts of this my Work (and which are both ready for the Press) entertain your Lordship with such a farther Assertion of those offices of that [Page] Obedience call'd Natural, as I believe will give no offence to any Zealot, or Patriot, and as I have hitherto took care to give none to either: For tho I think it not deniable that our Princes may by their Laws limit the exercise of that Allegiance or Obe­dience, with respect to Circumstances, yet as no Humane Laws can legitimate the entire withdrawing of any part of the Obedience enjoin'd by the Divine Law natural or positive, so how our Lex [...]rrae hath not limited the exercise of the Regal Power from the Dispensing with Disability, as in the Case now so much agitated, I have shewn, and shall further. But I conceive it here necessary for me to acquaint your Lordship that I have been often put to it as speaking cum vulgo & grosso modo, and for brevity's sake to use the aforesaid Expression of Dispensing with Disability, and with Disability incurr'd by Act of Parliament, that is, with what is generally enacted to be incurr'd, and SEEMS to be alike in­curr'd by all Persons who perform not what the Act enjoins; and which Dispensing with Disability is frequently used in popular dis­course for the pardoning it, and for the liberatio à poenâ, and as the Lord Chief Iustice Vaughan's Report by me so much cited men­tions dispensing to have been defined by some of the Iudges. But to a judgment so vastly comprehensive and profoundly penetrating as your Lordships, the dispensing with Disability must easily appear to be properly meant of the preventing it, and the dispensing with what might Cause it (according to the style of Queen Eliza­beth's Letters Patents) or effect the actual incurring of what will reverâ be incurr'd by the Persons not exempted by Dispen­sation from the doing what the Law enjoins: and which will be made to appear obvious to every man's understanding in one of the following Parts, and wherein I shall have occasion to speak less cum vulgo and more closely and accurately of the Nature of Dis­pensing, and of its effects in either forum, then yet I have had.

And now having Named that Great Queen, I shall not doubt but since the Members of the Church of England do now under our most puissant and most just Monarch find themselves as secure in the Profession of the Religion by Law establish'd as they did in her great and glorious Reign, it will upon recollection of thought appear as natural to them to hold themselves obliged to shew the same tenderness for every branch of Prerogative, and particularly for that of the Dispensative Power, that was then so remarkable in Par­liament, and throughout the Realm.

My Lord,
Your Lordship's most Obedient Servant, P. P.



I again bid you welcome, and am ready to go on where we last left off, and do not in the least doubt of your welcoming any thing I can say to you that may import you to know in order to your sworn assi­stance and defence of every Privilege belonging to the Crown. And I shall frankly tell you, that you and other Protestants who in a late Con­juncture did shew a more then ordinary zeal against Popery or Papal Usur­pations, ought to consider that you have thereby put your selves under an especial Obligation of tenderness [...]for all the rights of your Prince, and of hating all popular Usurpations or diminutions thereof, with an exemplary and most perfect hatred, and of thereby avoiding the being judged hypo­crites and factious.


I do herein most fully agree with you: and that the late zeal of the same Persons against papal Usurpations, and for popular ones was a scandal to the Age. I remember you once observ'd to me, how tender the Pro­testants in the times of Queen Elizabeth and King Iames the first, were of every Right and Privilege of the Crown with the most perfect tenderness, while the Attaques from the Court of Rome against those Princes had made the highest Ferment in the minds of the Populace. But I think there never was any Conjuncture of time here, when so many of the declaimers a­gainst Popery, and so many of the fautors of Plot-witnesses were so much at the same time for a Plot and no Plot, and for a King and no King; that is to say, did so much make a stalking-horse of Popery, whereby to strike at Prerogative.


But you know that the talk of Plots and Popery was before apply'd to that use. You know Archbishop Laud in his Star-chamber Speech▪ A 1637. mentions it p. 11. as the scope of the Libellers of the Faction to kindle a jealousy in Mens minds, that there were some great Plots in hand to change the Religion established, and to bring in (I know not what) Romish Super­stition. And the history of those times sheweth you how the Men that cry'd up Plots then did decry Prerogative. And in the Conjuncture of 41. the famous Protestation of May the 5th that year, begins with Out-cries of Designs of Popish Priests and Iesuits and other Papists and their PLOTS and CONSPIRACIES, and the Preface of the Covenant runs on in the style of [...]loody Plots and Conspiracies: But you likewise know the dismal state of Prerogative in those times then occasion'd by raising of those false Alarms of Plots.

And I may account it as a beneficial Providence to the Age, that short­ly after our last Plot-Epoche, Mr. Hobbs his History of the Civil-Wars com­ing first out in print through the License of the Press (and having been reserved to the detecting then the artifices of the Demagogues that produ­ced the Usurpations between the Years 1640. and 1660.) the Book notwithstanding all the prejudice against the Author (whether just or unjust) being writ with so much strength and beauty of Wit, as to make it fly like lightning round the Kingdom in so many Impressions, did then prove to many ingenious and thinking Men an effectual Antidote against the poysons of those old Artifices then again scatter'din the Press, being so destructive to Loyalty as heretofore.

Sir Iohn Davis in his Report of the Case of praemunire Hil. 4. Iacobi doth but right to the loyalty of Roman Catholicks and to the genius of the People of England when he saith there, That the Commons of England may [Page 40] be an example to all other Subjects in the World, in this, that they have ever been TENDER and sensible of the wrongs and dishonours offer'd to their Kings, and have ever contended to upheld and maintain their Honour and Soveraignty. And their Faith and Loyalty hath been generally such (tho every Age hath brought forth some particular M [...]nsters of disloyal [...]y) as no pretence of Zeal of Religion could ever withdraw the greater part of the Subjects of submit themselves to a foreign yoke; no, not when Popery was in its height and exaltation.

It is therefore no marvel that toward the latter end of the Reign of the late King, the very Mobile who had been so zealous against papal usur­pations, and so fiery in charging ALL Papists with disloyalty, did upon their discovery of the artifices of republican deluders to put an inglorious do­mestic yoke on the Monarchy, then think themselves obliged by the univer­sality of their loyal addresses to shew the more extraordinary zeal against any Popular Usurpations. And so I account it but natural to you who are made è meliore luto, to be ready to shew your most consummate zeal for every Privilege of the Crown.


It is not possible for any Man to wish me more sensible of my obli­gation in this point then I really am: and the rather for that I find so many mens loyalty to be but a kind of loud noisy nothing, or a metaphysical uni­versale, however they may [...]ansie it to be a real being: but what I know cannot exist a part from the particular Rights and Privileges belonging to the Crown being assisted and defended, and from a serious endeavour to understand the truth about their belonging to it. And my solicitousness to find out which in the shortest way possible and particularly as to the Pri­vilege of discharging incapacity or disability incurr'd by Act of Parliament, (as I told you at our last meeting) engaged me to divert you out of the course of your method, and whereupon you told me you would refer my thoughts to the Assertory part of the Oath.


Well: what ever damps I may see on English Mens loyalty, or dege­neracy from its nature by the arts of faction a while perverting them not to assist and defend this or that Privilege of the Crown, I shall never de­spair of their coming again to themselves: and that tho as in a vessel of Water and Oyl, while any one is shaking it, the Water may over-top the Oyl, so likewise in their minds while shaken and stirred by Demagogues the Oyl of the Lord's anointed is not there uppermost; yet that through its own nature, and through the English good nature and their natural addi­ction to Religion, it will in time naturally appear to be so.

And now to go on without further prefacing on either side, what if I should tell you that it imports you to consider, that in in the Assertory part of the Oath of Supremacy, you have declared and asserted that authority, as due to the King that was challenged and used by king Henry the 8th and Edward the 6th, that is, that the King under God, hath the Sove­raignty and Rule over all manner of Persons born within these his Realms of what Estate either Ecclesiastical or Temporal so ever, so as no other foreign Power, shall or ought to have any superiority over them?


I would then tell you, that you have mentioned some things to be in this Oath, that I remember not to be there.


I grant that I mention'd to you somethings that are not express'd in the Oath, and in the form of it as it is administred, and was enacted 1 Eliz. c. 1. and by which Act the refusers of such Oath are punish'd with DIS­ABILITY to bear Office. But in the same year in which that Act pass'd, Queen Elizabeth in an ADMONITION annext to her Injunctions, thought [Page 41] fit to exercise her Royal authority of the Interpretation or Declaration of the sense of that Oath enjoyn'd by Act of Parliament; and in that Admoni­tion you will find those words that you remember not in the Oath you took: as likewise her ACQUITTAL of all Persons from all manner of Pe­nalties, and consequently of disability, who took the Oath according to the sense of it publish'd in her Interpretation. And if you consult the Act, you will see that the disabilities inflicted in the Act on the refusers of the Oath are various. And thus then you see, that as soon as you have done taking the Oath, you are immediately call'd on by your Conscience to defend the Privilege and preeminence of your Prince, viz. of interpreting his Laws, and of discharging the disabilities thereby inflicted.


I now remember that I have read that Admonition of the Queens; but I account Proclamations, Injunctions, and Admonitions of Princes to be but temporary Laws, and that therefore this Interpretation of the Queen's and her discharging of Disabilities expired with her Reign.


To obviate such thought, I shall tell you that in the Act of the 5th of Queen Elizabeth, c. 1. and by which the Refusal of the Oath of Suprema­cy is punish'd more severely then by the before-mention'd disability, viz. by Proemunire for the first Refusal, and by making it Treason for some Per­sons to refuse it a second time (but Penalties that none ever doubted but the Crown might by its Pardon discharge) there is a Proviso that the Oath (viz. of Supremacy) expressed in the said Act made in the said first year, shall be takeu and expounded in such form as is set forth in an Admonition annexd to the Queens Majesties Injunctions Publish'd in the first year of her Reign, that is to say to confess and acknowledge in her Majesty, her Heirs and Successors, none other Authority then was challenged, and lately used by the Noble King Henry the Eighth, and King Edward the Sixth, as in the said Admonition may more plainly appear. And this too lets you see that the Parliament by thus referring to the Queen's Admonition did approve of her Power therein exercised, and of her having acquitted her Subjects from the Punishment of disability.


I must then, I see, fairly grant you that by that Parliament's having thus perpetuated the interpretation of the Oath of Supremacy contain'd in Queen Elizabeth's Admonition, I am bound in Conscience to take it in that sense, and am perjured if I do not so keep that Oath; and must likewise grant that you have shewn how auspicious that Oath by the Queens inter­preting the same, and the Parliament about five years after approving that Interpretation, was to the Assertion of such her Power; and that if any taker of the Oath should gain-say such Power, you have prepared such a Con­futation in the case as was used to the old Philosopher who disputed against Motion, and whom his Adversary confuted by removing him from his place. But as you are a fair arguer, I am to take leave to tell you, That that Parliament, tho they approved the Queen's Admonition in general, did not particularly shew their Approbation of the Queen's Power of dispensing with the Penalties that she exercised in that Admonition.


They did sufficiently shew their Approbation of the whole; and there­fore you need not question their approving of its parts. But because you seem to lay some stress on that Parliament's not expresly approving in terminis the Queen's Power of discharging the Penalties (and one of which by the Act of 1o Elizabethoe was disability) I shall tell you that whereas Queen Elizabeth had thought it expedient for the Supporting of the Consecration of the Bishops of the Church of England to dispense with whatever might cause Disability, according to her Supream Authority, by her Letters Pa­tents, the very same Parliament at their next Session did 8o Elizabethoe, c. 1. [Page 42] in terminis terminantibus declare their Approbations of the Queens dispen­sing with disability by those Letters Patents: for it having been in that Statute mention'd, that for the avoiding of all Ambiguities and Questions that might be objected against the lawful Confirmations, investings and Consecrations of the said Archbishops and Bishops, her Highness in her Letters Patents under the Great Seal of England, &c. hath used and put in her said Letters Patents divers other general words and Senten­ces, whereby her Highness by her Supreme Power and Authority hath DISPENS'D with all Causes or doubts of any Imperfection or DISABILITY that can or may in any wise be objected against the same, &c. it follows, That all Acts and things heretofore had, made or done by any Person about any Consecration, Confirmation or Investing of any Person elected to the Office or Dignity of any Archbishop or Bi­shop, &c. by Uirtue of the Queens Majesty's Letters Patents or Com­mission, &c. be and shall be by Authority of this present Parliament de­clared, judged and deemed at and from every of the several times of the doing thereof good and perfect to all respects and purposes: any matter or thing that can or may be objected to the contrary thereof in any wise notwithstanding.

Sir E. Cook in the 4th part of his Iustitutes. c. 74. viz. Of Ecclesiastical Courts, takes notice how our adversaries had made objections against our Archbishops and Bishops consecrated about the beginning of the reign of Queen Eliz. and consequently against the Bishops ever since: That they were never consecrated according to law, because they had not three Bishops at least at their Consecration, and never a Bishop at all, as was pretended, be­cause they being Bishops in the reign of Edward the 6th were deprived in the reign of Queen Mary, and were not (as was pretended) restored before their presence at the Consecration. These pretences being but Cavils are an­swer'd by the Statute of 8o Eliz. c. 1. and provision made by authority of that Parliament, for the establishing of Archbishops and Bishops, both in proesenti and in futuro in their Bishopricks.

But Mason in his 3d Book c. 7th. De ministerio Anglicano, in his answer­ing the objection, hath recourse to the Queens Patents referr'd to by the Statute of 8o Eliz. and having mention'd the Queen's dispensing by her su­preme authority cum quavis causâ aut suspicione c [...]jusvis DEFECTUS, aut INABILITATIS quoe quovis modo contra eorum consecrationem obten­di poterat, he saith, verba in diplomate Regio sic se habent, supplentes nihilominus suprema authoritate nostra Regia ex mero motu & certa scientia nostris, si quid in hiis quae juxta mandatum nostrum per vos fient, aut in vobis aut vestrum aliquo, conditione, statu, aut fa­cultate vestris ad praemissa perficienda desit, aut deerit, eorum quae per statuta hujus Regni, aut per leges ecclesiasticas in hac parte requirun­tur, aut necessaria sunt, temporis ratione aut rerum necessitate sic po­stulante: and then adds, unde serenissima Regina ut omnem calumniandi ansam proecidere, ipsique invidioeos obstruere posset, &c. DISPENSARE dignata est, siquid forte Lynceis oculis invidia, alicujus statuti vel canonis violati proetextu possit obtendere. And then having brought in his Po­pish opponents objection, Hem quid audio? Vos P [...]ntificis maximi Dispen­sationes dente canino soletis arrodere, & jam nihil pudet in Actis Parlia­mentariis laicali magistratui, Reginoe, foeminoe dispensandi facultatem tran­scribere? Dispensandi inquam cum quavis causâ aut suspicione ullius defectus aut INABILITATIS, quoe incidere poterant, idque in sacris ordinibus, he makes this reply, viz. Papa aliquando dispensat nimium papaliter, sed non perinde Elizabetha. Suas tantum leges RELAXAVIT: Cum transgressio­nibus [Page 37] contra leges suas DISPENSAVIT. Quod Deus fixit nunquam refige­re, aut rescindere est molita. And there afterward to the objection; si dicatur Reginam sufficientem dispensandi cum illis potestatem habuisse, profe­ratur aliquod illius potestatis fundamentum, [...]i non ex scripturâ sacrâ, sal­tem ex Conciliis aut patribus, aut uno aliquo approbato exemplo, in toto mil­le & quingentorum annorum curricu [...]o, the reply is, Nonne Principis est legum suarum r [...]gorem res ubi postulat emollire? Non magno opinor opus est m [...]limine ad hoc probandum: and as to what was objected against a Prince's dispensing with an ecclesiastical Canon, he saith, Canonum (quatenus sunt leges Principis ec­clesiasticoe) summum jus, rigorem, & duritiem moderari spectat ad officium principis. And then he judiciously confutes Sanders his reproaching our Bishops in his book of Schism, with the term of Parliamentarii episcopi, and he referrs to the words in the Statute of 8o Eliz. that I have mention'd to you, and saith of them, Omnino liquido ostendunt Comitia Parliamentaria non consecrasse, ordinasse, vel constituisse episcopos aut ministros, sed jam se­cundum leges ecclesioe LEGITIME Consecra [...]os, & ritè ordinatos, ac Constitu­tos, pro talibus habendos esse DECLARASSE, &c.

And so I doubt not but you mind the words in that Act relating to the Queen's Letters Patents, viz. shall be by authority of the Parliament (not made good, for they were so before, but) declared, judged and deem'd good.


I apprehend you.


But to return to the Consideration of what you are on the whole matter obliged to by virtue of the Oath of Supremacy in the Case now before you: and herein I find that by Virtue of the Queens interpretation of that Oath, and the Parliaments Approbation thereof, that when in the Assertory part of the Oath you do utterly testify and declare in your Conscience that the King's Highness is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal, you have as in the Presence of God solemnly given your cordial Assent to, and made your most Religious acknowledgment that the SOLE Supreme Government or Soveraignty and Rule under God over all manner of Persons born within these Realms, is in the King; and you are obliged to judge that tho the Oath speaks of all Spiritual or Ecclesiastical THINGS or Causes, and the interpretation of all manner of Persons of what Estate ei­ther Ecclesiastical or Temporal soever they be, yet there is no inconsistence between the Oath and the Interpretation, for that as a Learned man in his Comment on that Oath hath well observ'd, there is no Opposition between these two, Persons and Causes; the Principal object of a Law is a Person, and a Person with respect to his Actions, a Person morally Consider'd; and he there quotes Suarez de Legibus, l. 1. c. 8. saying, Ad leges per se requiri­tur potestas in personam, secundario in Res alias: and for that the Asserto­ry clause in the Oath declaring the King the only Supreme Governor of this Realm, doth necessarily imply his being the only Supreme Governor of all Persons in it.


But perhaps you did not take notice that probably one reason why Queen Elizabeth was willing that her Interpretation that related to the Assertory part of the Oath, I mean as to her Power over all the Persons of her Subjects, and which was Publish'd in the Admonition after her Injun­ctions, should in the aforesaid Act in the 5th year of her Reign be approved in Parliament, might be to satisfie the scrupulousness of some mens Tender 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 1o Elizabethoe could not receive an Interpretation but from [Page 38] 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.


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 [...]ases approved or strength [...]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 5o 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 [Page 39] 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 t [...]ll you, that Bartol [...]s in his Tractatus testimoniorum speaking of the Imperial Power concedendi veniam oetatis, saith Carolus quar [...]us sanctissimus & nebilissimus Imperator inter [...] mult [...] concessit, ut ego meique descendentes quos legibús d [...]los esse contigerit, per un versum imperium oetatis ven [...]am concedere va­le [...]mus, servatā formā quoe legibus reperitur ins [...]rta; and whereby you see that a Power of dispensing with incapaci [...]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, quōd minus est non licere, you ne [...]d not w [...]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 5o or 8o 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 S [...]premacy▪ having spoke of the Queens Interpreta­tion of the Oath in her Admonition, and of the Parliamentary Proviso 5o Eliz. doth thus go on, There is something of Explication further (meaning of the Oath) in the Arti [...]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 doth appertain, and is not nor ought to be subject to any foreign Iurisdiction. Where we attribute to her Majesty the Chief Government, by which Title we understand the minds of some slanderous Folks to be offended, we give not to our Prin­ces the ministring either of Gods Word, or of the Sacraments, the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify, but that only Prerogative which we see to have been given always to all Godly Princes in holy Scriptures by God him­self, that is, that they should rule all Estates and Degrees committed to their charge by God, whether they be Ecclesiastical or Temporal, and restrain with the Civil Sword the stubborn and evil doers.

The Bishop of Rome hath no jurisdiction in the Realm of En­gland.

The Laws of the Realm may punish Christian Men with death, for h [...]inous and grievous Offences.

It is lawful for Christian Men at the Commandment of the Magistrate to wear Weapons, and serve in the Wars.

Now after the Oath of Supremacy had been enjoyn'd in the first year of her Reign, and the Admonition annexed to her Injunctions was then like­wise [Page 40] publish'd, viz. A. D. 1559. and after the Parliament had by proviso [...] the interpretation of the Oath, (which Parliament began the 12th of Ianuary in the 5th year of her reign, and from which day all things d [...]ne in that Session are to bear date) the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces, and the whole Clergy in the Convocation holden at London in the 5th year of her reign, and A. D. 1562. were by the Archbishops and Bishops of both Provinces subscribed the 29th of Ianuary in that year, and by the Clergy of the lower House of Convoca­tion on the 5th of February following, and to all which the Queen gave her Royal Assent. And in the Articles there was by the Queens Royal Preroga­tive an additional Interpretation probably at the instance of the Clergy gi­ven to the interpretation, in the Admonition▪ and in the Parliaments Provi­so: and the which additional interpretation had in it no respect to, nor mention of what, being in several places of the former one, might a­muse the Clergy with some Fears and Iealousies, namely the Duty, Allegi­ance and Bond that were acknowledged due to Harry the 8th and Edward the 6th, and the Authority that was challenged and lately used by those Prin­ces; however yet that latter Clause is qualify'd in the Admonition. But for the 37th Article before-mentioned allowing the measures of the Royal Supremacy from the Prerogatives given by God in Scripture to holy Prin­ces, whereby our Clergy might seem to have brought the Prerogative in­to its own proper Element, and theirs too (the knowledge of the Scriptures being their profession) our Clergy no doubt were always thankful to the Crowns Dispensative power, and so exercised out of Parliament: and where­by they were secured from penal disabilities either by suspension or depri­vation for not taking the Oath in the sense of the Admonition.

Thus as things in their proper place are at rest, the Queens Dispensative power and the Consciences of the Clergy by this interpretation of the Oath were so much at rest, that about eight or nine years afterward the same 39 Articles that had been by the Archbishops and Bishops and Clergy of both Provinces agreed on in the year 1562. were by the said Archbishops, Bishops and Clergy again agreed upon, and again ratify'd by the Queen in the year 1571. the 13th year of her reign, and when care was taken by the Government that that interpretation being incorporated in the body of the 39 Articles should be deem'd good in Parliament by the Statute of 13o Eliz. c. 12. as the other interpretation in the Admonition had been by the proviso in the Act of the 5th of that Queen, and probably for the same reason: and as her dispensing with disability expresly in the 8th year of her reign was.

In the Act of the 13th of Eliz. reference was made to those Articles as agreed on by the Archbishops and Clergy and set forth by the Queens au­thority Anno 1562. and the Act is entituled, Reformation of Disorders in the Ministers of the Church, and in which it was enacted, That all such as were to be ordained or permitted to preach or to be insti­tuted into any Benefice with cure of Souls, should publickly sub­scribe to the said Articles; which shews (if you mind it) that tho the Parliament did well allow and approve of the said Articles, yet the said Book oweth neither Conf [...]rmation, nor Authority to the Act of Parliament. And that Act concerning only Clergy-men, tho the interpretation in the 37th Article is left to oblige the Clergy, yet that in the Admonition might concern you to stick to, if nothing had since happen'd whereby the dispen­sative power inherent in the Crown, may have given your Conscience the benefit of the interpretation thus afforded to the Clergy.

[Page 41]But therefore I shall here tell you, that the Canons of King Iames the [...]st. Anno 1603▪ being confirmed for him and his Heirs and Successors are bind­ing now, however it hath been objected as the unhappiness of Queen Eliza­beths Canon [...], viz. A. 1571. A. 1584. A. 1597. wanting those formal words of Heirs and Successors, to expire with her. And as those words are in King Iames's Canons so are the words of enjoyning their being observ'd, fu [...] ­fill'd and kept not only by the Clergy, but by all other Persons within this Realm as far as lawfully, being Members of the Church it may concern them: and tho in the first Canon there entituled, The King's Supremacy over the Church of England in Causes Ecclesiastical to be maintain'd, 'tis order'd, That all Ecclesiastical Persons shall keep and observe, and as much as in them lyeth, all and singular Laws and Statutes made for the restoring to the Crown of this Kingdom, its ancient Iurisdiction over the state Eccl [...]siastical, yet in the next Canon entitled, Impugners of the King's Supremacy censur [...]d, the measures of the King's ecclesiastical Authority being taken from the Godly Kings among the Iews according to the 37th of the 39 Articles, was an ex­tending to the Layety the ben fit of the Interpretation obtain'd by the Cler­gy, the which was in effect a judgment of the Convocations, that the pursu­ance of that Interpretation of the King's Ecclesiastical Power, and the a­voiding of the punishment of Disability by the use of that Power, was not aga [...]st the Law of the Land: but the 5th Canon, viz. Impugners of the Ar­ti [...]les of Religion establish'd in the Church of England censured, and in which the establishment of the 39 Articles is solely referr'd to them, as agreed on in Convocation in the year 1562. without any notice of the Parliament of the 13th of Eliz. having done any thing about them, doth more clearly se­cure to you the benefit of the Interpretation the Clergy had.


You have mention'd so many things to me relating to the interpre­tation of the Oath of Supremacy which I never knew before, that may seem to perplex the Conscience of any one who would take it, and to expose it to such a kind of Ordeale-Purgation per ferrum candens, that may make the passage through it dangerous to Ones Conscience.


Look you to that who have taken the Oath, and do you consider how far you are by the Interpretations that I have referr'd you to, obliged to take your measures in the Matter that lies now before you, as to your assist­ing and defending the Prerogative of the Dispensative Power: and I likewise recommend it to you to observe how much to the satisfaction and ease of the minds of the generality His Majesty's Lay-Subjects, he by Connivence hath dispens'd with their not troubling themselves to study the Duty, Bond, or Al­legian [...]e that was acknowledged to be due to Henry the 8th, or Edward the 6th, or the Prerogative given by God to Godly Princes in the Scripture, or the Christian Emperors in the Primitive times: for however our Divines are by the 39 Articles and the Canons of King Iames, and King Charles the First particularly obliged to study these Points, and that the knowledge of the same may oblige Men of learning and leisure among the Layety to Con­duct their Consciences thereby in their observance of this Oath, yet His Ma­jesty's not reviving among all his Subjects by any Proclamation or Ecclesia­stical Injunction or otherwise, the notices of these forgotten things, cannot but be acceptable to the generality of them as a Dispensation by Connivence. And therefore in Complaisance with, and gratitude to him, they are by the Law of Nature bound to give him what is plainly his Due, according to the plain Oath tender'd to and taken by them, and to take care that they do not exercise an Illegal Power of dispensing by way of Interpretation of that Oath to the Subversion of the sense of the Assertory and Promissory parts of it; both which are the Supporters of the Royal Dispensative Power.

[Page 42]But reserving for some other time my thoughts relating to the Dispensa­tive Power exercised by the Godly Princes in Holy Scripture, and by the Christian Emperors, I shall desire you now to look on your Oath in the plain natural sense of it, and as much as if no authoritative one had ever been given of it. Consider, that when you declare the King is the only Su­preme Governor of this Realm, or Governor of all Persons in it, no Humane Laws can bind our Consciences by any disability Penal incurr'd from serving him. When Kings say there is a Necessity for our Service, St. Paul hath said, we must needs be subject to them; and which as Grotius hath well observ'd, implies Obedience to their Commands as well as Submission to their Coercion.

As Dr. Donne in his Pseudo-Martyr observ'd well concerning the Oath of Allegiance, All the Substance of the Oath is virtually contain'd in the first Proposition, That King James IS lawful King of all these Dominions, the rest are but Declarations and Branches naturally and necessarily proceeding from that root, the same as to the Point we are upon may be verify'd of the Oath of Supremacy, The King's Highness IS the only Supream Governor of this Realm (not shall be by virtue of this Act) IS SO notwithstanding any thing that hath been done, or is a doing, and whereby any former Princes supposed de facto consenting to tye up his hands from Governing all his Subjects, and ranging them in their Stations in his Service, is out of the Case of your Oath, who have sworn thus, that King Iames the Second IS the only Supreme Governor, &c.

Since therefore you have in your Oath acknowledged that the King is the only Supream Governor, and that according to the 37th Article of the Church of England, He HATH the rule of all Estates and Degrees committed to his charge BY GOD, whether they be Ecclesiastical or Civil, I will ask you, if any Humane Law can disable any Persons from being govern'd by him, more then it can Children from honouring their Parents. According to those words in Malachi, If then I be a Father, where is my honour? and if I be a Master, where is my fear, &c. may it not be said to every Subject, while the King IS your King, while he is your only Supreme Governor, and while he is your Political Father, will you not be Govern'd by him? Or in effect, will you Govern him by thinking to oblige him not to employ this or the other Subject, and in effect endeavour both to dishonour and disable him who is the Head of the Community (as it were) by loss of Member? Will you dishonour him who bears the Sword by im­posing on him your belief that such a Member of the Body Politick is a gan­grened one, and necessary to be cut off from serving the State, when he tells you he knoweth the contrary? Or will you dishonour his Religion by saying that Papists are disabled by their Religion from being sound Members of the State, when he knoweth they are not so disabled by it, and accor­dingly as Sir William Temple hath in his Excellent Observations on the Low Countries made it appear, that the Papists there are a sound part of the State?

Remember that the words only Supreme, as apply'd to your King in the Assertory part of your Oath are not Otiosa Epitheta. You will find that our great Casuist, Bishop Sanderson in his Seventh Lecture of the Obligation of Conscience lays so much stress on those words in your Oath Only Supreme Governour, as to judge him PERIUR'D who having taken the Oath, shall assert the Figment (as he calls it) of Co-ordinate Power. Quid enim PER­IURIUM dici mereatur, si hoc non sit manifestissimum PERIURIUM, quem solum esse Supremum in suo regno Moderatorem, Conceptis verbis jura­veris, ei parem etiam in suo regno potestatem constituere & agnoscere.

[Page 43]If you did but often enough consider your Prince, as asserted in your Oath, to be Governor of the Realm, you would find in your thoughts no difficulty of allowing him the Power of Commanding all Persons in it without ex­ception to serve him. Bishop Bilson in his Book of Supremacy, p. 238. saith, Though Bishops may be call'd Governors in respect of the Soul, yet only Princes are Governors of Realms. Pastors have Flocks, and Bishops have Diocesses; Realms and Dominions none have but Princes, &c. and so the style of Governor of this Realm belongs only to the Prince, and not to the Priest, and imports a Publick and Princely regiment. And here I shall take occasion to tell you, that as the Common Law, subjecting the Inhabitants of this Realm to the Go­vernment of Bishops hath not kept our Princes from exempting particular Persons and Bodies Corporate from their Iurisdiction, but could not exempt them from being subject to their Prince, and from obeying him, that much less could any Statute Law do it.

It is upon the weight of reason that lyes in this Assertory part of the Oath that so many Writers of the Common Law have founded their Assertion of the King's Power o [...] Commanding the Service of all his Subjects, as essential to the keeping up the Monarchy, (or the Rule of all Estates committed to him by God, that I lately spoke of) and inseparable from it, no [...] alienable by any Humane Laws. It is the Supreme Power of our Princes as Governors of the Realm, that hath always entitled them to Press men for the Ser­vice of the Crown by Land or Sea, and to recall both Soldiers and Mari­ners from the Service of Foreign Princes upon emergent Occasions to serve their natural Liege Lord. And the Book writ by a Learned Common Lawyer against the Exclusion, call'd, A Letter from a Gentleman of Quality in the Country, &c. and Printed A. 1679. and so deservedly extoll'd by the Iudi­cious loyal, tells you in p. 7. and 8. that If it should be enacted by Parlia­ment that No man should honour the King, or love his Parents or Children, &c. such an Act would be ipso facto void, because contrary to the express Divine Command, &c. The Statute of 23 H. 6. c. 8. and several other Statutes Enact, that no Man shall be Sheriff of any County above one year, and that any Patent of the King to any Person for a longer term, tho with an express Clause of Non-obstante shall be void and of none Effect, and the Patentee perpetually disabled to bear the Office. And yet notwithstanding it is Re­solv'd by all the Iudges of England, that these Acts of Parliament are void: and that the King may by Non-obstante Constitute a Sheriff for Years, Life, or Inheritance. And what is the Reason which the Iudges give of this Reso­lution? Why, because, say they, in express words, this Act of Parliament cannot bar the King of the Service of his Subject, which the immutable Law of Nature doth give to him. For Obedience and Ligeance of the Subject, (add they) is due to the Soveraign by the Law of Nature. See 2 Hen. 7. 6. v. Calvin's Case, 14. a. in Coke's 7th Rep.

We know that by the Statute of 4o. H. 4. c. 5. 'tis ordain'd, That every Sheriff of England shall abide in proper Person within his Bailywick, for the time that he shall be such Officer. But this Act hath never been con­strued to hinder the King as Supreme Governor and Ruler of all Persons in the Realm from Commanding any Sheriffs to serve him elsewhere during their Shrievalties: nor on such case to oblige the Sheriffs in Conscience to observe the Statute by such Personal residence.

Baker in the reign of King Charles the first tells us of an Information A. 1629. in the Star-chamber against Mr. Long, for that he being high Sheriff of the County of Wilts, had the Charge and Custody thereof commit­ted to him, and had taken his Oath according to the Law to abide within his Bailys-wick all the time of his Sheriff-wick, and his Trust and Employment [Page 44] requiring his personal attendance therein, did contrary thereto suffer himself to be chosen a Citizen for the City of Bath to serve in the last Parliament, and did attend at Westminster in Parliament WITHOUT HIS MAIE­STIES LICENCE, he being Sheriff at that time: and that for the fore­mention'd Offences and Breach of his Oath, and neglect of his Trust, and Con­tempt of his Majesty, the Decree was, That he should be Committed to the Tower during his Majesties Pleasure, and pay a Fine of 2000 Marks to the King. Hereby you see that his Majesties LICENCE or Dispensing with that Statute had indemnify'd him from it in the Court of Law; and that the potestas Superioris being necessarily imply'd in a promissory Oath, the King as supreme Governour of all Persons in his Realms, commanding or al­lowing such Officers service to the publick elsewhere, had secured him in either forum.

The known Custom of the Speaker of the House of Commons DISABLING himself when presented to the King, but of entring on his Charge on the King's approbation and pleasure signify'd (according to that saying of Cu [...] me posse negem quod tu posse putes) may pass for some representation to our thoughts of Disability to serve the publick, then evaporating when the King as Governor of the Realm doth give the Subject a Call so to do. You may find this practice of the Speaker's disabling himself set down in Coke 4. Inst. c. 1. And I shall here by the way take notice that he there likewise mentions it that one of the Principal ends of Calling of Parliaments is for the redress of the Mischiefs and Grievances that dayly happen. And he had there before said, Now forasmuch as divers Laws and Statutes have been ena­cted and provided for these ends aforesaid, and that divers Mischiefs in par­ticular, and divers Grievances in general concerning the Honour and Safety of the King, the State and Defence of the Kingdom, and of the Church of England might be prevented, an excellent Law was made Anno 36. E. 3. which being applied to the said Writs of Parliament doth in few and effectual words set down the true subject of a Parliament in these words, For the maintenance of the said Articles and Statutes, and redress of divers Mischiefs and Grievances which daily happen, a Parliament shall be holden every year, as another time was Ordain'd by a Statute. Before the Conquest Parliaments were to be holden twice every year, &c.

But accordingly as my Lord Coke there takes notice of the style of the Statute of 36. E. 3. viz. to the Honour of God, and of holy Church and quietness of the People, and according to the style of the Statute of 10. E. 3. Because our Sovereign Lord the King Edw. 3. which Sove­rainly desireth the maintenance of the Peace and Safeguard of his People, &c. hath Ordain'd, &c. for the Quietness and Peace of his People, &c. and suitably to the style of the Statute of 14o E. 3. 1. To the honour of God, &c. The King for Peace and Quietness of his Peo­ple as well great as small, doth Grant and Establish the things under­written, &c. and to that of 20. E. 3. and for this Cause desiring as much for the Pleasure of God, and Ease and Quietness of our Subjects, and according to that style in the Register, Nos oppressiones, duritias, dam­na excessus, & praedicta gravamina volentes relinquere impunita, volen­tes (que) salvationi & QUIETI populi nostri in hac parte prospicere ut te­nemut, &c. and according to the Trust committed to Princes by God to endeavour that their Subjects may under them lead QUIET and Peaceable lives in all Godliness and Honesty (and which is the great Fundamental reason of the Moral Obligation of Princes to relax the Summum jus of their Laws by sometimes DISPENSING therein) since we may easily imagine by our thinking of a late Conjuncture, how possible it was that the Peace [Page 45] and Quietness of the People might be disturb'd by the Annual Calling of Parliaments, according to the tenour of those Laws; our Princes as Supreme Governors of the Realm, did often dispense with their observance.

The Author of the Book call'd The Long Parliament Dissolv'd, Printed in the year 1676. refers to the Laws of 4o E. 3. c. 10. and 36. E. 3. c. 14. 5. E. 3. No. 141. 5. E. 2. No.—1. R. 2. No. 95. as positively appointing the Meeting of a Parliament once within a year. And the People (saith he) have silently waited and born the Omission of our Princes in not so Calling Parliaments: And he further mentions how Queen Elizabeth Prorogued a Parliament for three days more then a year: and he presumes to complain of His late Majesty's Proroguing his long Parliament to above a years time as illegal, and he argues for that Parliaments being disabled from Sitting and acting afterward as a Parliament, by reason of such Prorogation as con­trary to the aforesaid Laws, and which, he saith, were declared to be in force when the triennial Act was made in 16. Caroli 1mi. and so likewise in the Statute for repealing that triennial Act in 16. Car. 2o. in these words, And because by the Ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third, Parliaments are to be held very often, &c.

And how the Iudgment of the House of Lords was assertive of the legality of that Parliaments not being disabled from sitting after such His late Maje­sty's Prorogation, is fresh in memory.

But to return from whence I digress'd, I may here take notice to you how our Princes as Supreme Governors of the Realm, and as having the Rule of all Persons committed to them by God (and to whom they stand accountable for the same) have held themselves obliged further to dispense with disability incurr'd by Acts of Parliament upon a Religionary account, and which they have done to the general satisfaction of their Subjects of all Religions.


What do you here intend to refer to?


I do here intend to refer to the Statute of 3o Iacobi c. 5. by one Clause in which Act Convict Recusants are DISABLED from practising Physick, or bearing any Office or Charge Military, and by which Clause every Person offending, is to forfeit for every such Offence 100 l. and the one Moyety thereof to be to the King, and the other Moyety to him that will sue for the same, &c. But notwithstanding the Zeal of that Prince against Popery, he out of a tender regard to the Bodies and Healths of his People, and the ennabling many learned Roman-Catholick Physicians to preserve them, did by Connivence sufficient [...]y dispense with that Law; insomuch that it may be said, that that severe disabling Law came on the Stage, but as Cato into the Theatre, only to go off again.

And I have elsewhere mention'd it, that a Book afterward Printed in his Reign, call'd The Foot out of the Snare, sets down the Names of about Twenty five famous Roman-Catholick Physicians then Practising in London, and the places of their abodes, and whom yet (I believe) no Informer ever molested.

And notwithstanding the disability incurr'd by that Act of Parliament, I account that an eminent Roman-Catholick Physician not long since dead, was not by any among our various Sects of Protestants in the Plot-times, envy'd the liberty of being in our Metropolis the greatest Practicioner of that noble Science. By the same Clause Roman-Catholick Lawyers are likewise disabled from Practice, and under the same Penalty; but who likewise en­joy'd the same Dispensation by Connivence with those of the other Profession, accordingly as Mr. Nye in his Book, call'd Beams of former Light observes, p. 146. viz. The Law, Physick, Merchandize, &c. may be practised by a Turk, or Iew, or Papist here among us, &c.

[Page 46]How severe the Laws in being are against Roman-Catholicks of the other great Profession, namely of Theology, and of the Clerical or [...]er officia­ting here, you know. But you likewise know my opinion I discours'd to you of in the Conjuncture of the Plot, and Panick fears; namely, that by virtue of the Contents of the Assertory part of the Oath we are upon, even our Protestant Kings as Supreme Governors of the Realm both in Matters Ecclesiastical and Civil, and as having the Rule of all Persons committed to them by God, were morally bound to see our Roman-Catholick Countrey­men, while living among us here, provided with a Competent Priest­hood, as Physicians for their Souls, and to administer the Sacraments to them.


Yes, I remember you Discourse of that matter then, and how you mention'd it; that if any Turks or Iews, or any Heterodox Religionaries desired to live here without a Priesthood, the Prince as Guardian of both Tables, was obliged by his Coercive Power to make them put their own Principles in practice by their having a Competent Priesthood, and which all the Sects of the Mahumetan, Paga [...], Iewish and Christian Religion own it as their Principle to have: and that as Religion was necessary to the State to make men good Subjects and ready to serve their Prince, and just Dealers, a Priesthood was necessary to Religion.


You are not therefore to wonder at the Dispensation by Connivence so many Roman-Catholick Priests enjoy'd here in the Reig [...]s of former Prin­ces. And I shall some other time tell you how our Laws that DISABLE Papists from bearing Arms, were in the time of the Rebellion after A. 1640. necessarily dispens'd with by the Royal Martyr as Supreme Governor of the Realm; and that none of the Church of England did look with an evil eye in the least on such disability, being then dispens'd with by Prerogative.


I suppose you may have heard it objected that by the Statute of 25. C. 2. which has lately employ'd your thoughts, the Prerogative of the King is not touch'd; for that the King may grant the Offices to any of his Subjects, and that the Act is only a Direction to the Subject to qualifie him­self accordingly for the King's Service, and that if he be uncapable to serve the King, 'tis through his own default, and he is punishable for the same, as happen'd in the Case of one who was made Sheriff and neglected to take the Oaths: and that there was an Opinion given in the Case that no Sub­ject could put himself out of a Capacity to serve the King, but for so doing he is punishable.


But the more you think of this Matter, you will find the unreasona­bleness of the Objection recurring upon your thoughts with greater force. For it is not in mens Power to qualifie themselves to serve the King by be­lieving what doctrinal Propositions they will: and tho you have heard of a Faith that will remove Mountains, yet you may consider that 'tis as easie to remove them as your Faith it self about Matters of reveal'd truth, and that considering the Circumstances 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 [Page 47] 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 N [...]n-conforming Ministers and Printed A▪ D. 1605. you will find that they have there given in sufficient caution for t [...]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 Suprem [...]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 Sup [...]emacy to be unlawful, that we are pers [...] 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 de [...]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 [...]ncient times this Fundamental Assertory part of your Oath t [...]at the King is the only Supreme Governor of this R [...]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 [...]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▪ summ [...] Regis est, ad hoc est constitutus, ut Regnum ter [...]enum & populum Domini & super omnia sanctam veneretu [...] Eccle­siam ejus & regat, &c. and where he tells you of the style of King Edwin in his Charters, viz. of Ang [...]orum Rex, & totius Britannicae tel [...]uris Gu­be [...]nator & Rector. And he there refers likewise to several Grants made by Ab [...]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 24o. 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 govern [...]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 [Page 48] 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.


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.


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 'tis 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, [Page 49] a [...]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.


Was that Speech of the Archbishop ever printed?


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 Comm [...]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 J [...]sias King Edward the 6th. what had become of that great work of our Reformation in this flourishing Church of England?


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 Cai [...]'s Mark, in regard you have mention'd it, that Clergy-men to some did seem by the Law-Divine disabled from secular Employments.


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 & Sorre [...]'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▪ [Page 50] 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 Pop [...]s of Rome and Lanfrank, Anselm, Stephen Langthon, and Othobone and with an intent to withdraw the Clergy from t [...]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.


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.


They were so, and the Disability of a whole third estate as to bearing secular Offices did not stand in the way of Prerogative. I have read it in Fuller's Church-History that in the year 1350. the Lords and Commons in Parliament did find themselves aggrieved that the Clergy-men engrossed all secular Offices, and thereupon presented the ensuing Petition to the King ac­cording to this effect, insisting only in the substance thereof, viz.

And because that in this present Parliament it was 1370. Ex Rot. Parl. in turr. L [...]nd. in 45. Ed. tertii. declared to our Lord the King, by all the Earls, Ba­rons and Commons of England, that the Government of the Kingd [...]m hath been performed a long time, by the Men of Holy Church, which are not justifyable in all Cases, where­by great mischiefs and damages have happen'd in Iustifiables in the French origi­nals. Quaere, Whether not able todo justice, or not to be juststify'd in their Employment as improper for it. times past, and more may happen in time to come, in disheriting of the Crown and great prejudice of the Kingdom, &c. that it will please our said Lord the King that the Lay-men of the said Kingdom which are sufficient and able of Estates, may be chosen for these, and that no other Person be hereafter made Chancellor, Treasurer, Clark of the Privy-Seal, Barons of the Exche­quer, Chamberlain of the Exchequer, Comptroller, and all other great Officers and Governors of the said Kingdom, and that these things be now in such manner establish'd in form aforesaid that by no way it may be defeated, or any thing done to the contrary in any time to come, saving to our Lord the King the Election, and removing of such Officers, but that always they be Lay-men, such as is abovesaid.

To this Petition the King return'd that he would ordain upon this point, as it should best seem to him by the advice of his good Council.

In fine, you see that tho the Clergy-men were thus disabled by the ge­neral Customs and Usage of the Realm, and by lawful Canons and provincial Constitutions, accounted by that Iudge beforemention'd to be tanta-mount to Acts of Parliament: yet you [...]ee our Kings did frequently dispense with these Customs, lawful Canons and Constitutions. And tho the Office of Bishops renders them guardians of the Canons, yet you see how tender they have been of the Regal power of Dispensing therein.

And as that saying of Wicliffe, however censured in the Council of Con­stance, may perhaps with a little help be reduced to Orthodoxy, viz. That [...]ne should be Excommunicated by any Prelate, unless he know him Excom­municated [Page 51] by God, so with parity of reason it may be said, that none should be totally disabled by any Prince from serving him, unless he knew him really disabled by God; and especially when he knew the contrary, and that the Services of the great men of the Clergy had so often been success­fully employ'd at the Helm of State: and when for the honour of Clergy­mens Councel some of the most profound pieces of State-Policy our English Story hath in it are to be attributed to Clergy-mens officiating in their Princes Councels, and as for Example, when by the figure that Bishop Mor­ton made at the Helm, he did make up the dismal breach, and united the two Houses of York and Lancaster in the Happy Marriage between Henry the 7th and the Lady Elizabeth, a [...] when Bishop Fox who was Lord Privy Seal, did by his Advice lay the Foundation of a more happy Union between the Kingdoms of England and Scotland, by the eldest Daughter of Hen [...]y marrying Iames of Scotland, and the younger matching into France, that so on their ever coming to inherit, Scotland might be annex'd to the Impe­rial Crown of England, and England not be annex'd as a Province to France, and for the Consequences of which Advice, both Englishmen, and English and French Protestants have so much cause to say, We Praise thee, O God, &c.

And I am here minded of what Fuller tells us on A. 14. H. 4. viz. It was moved in Parliament that no Weishman, Bishop or other, shall be Iustice, Chamberlain, Chancellor, Treasurer, Sheriff, Constable of a a Castle, or Keeper of Records, or Lieutenant in the said Office in any part of Wales, or of Councel to any English Lord, notwithstanding any Patent made to the contrary, Cum clausulâ non obstante licet Wallicus natus: and that it was answered, that the King willeth it, except the Bishops: and for them and others which he hath found good loyal Lieges toward him, out said Lord the King will be advised by the Advice of his Councel. Ex Rot. Parliamentariis in turri Lond. in hoc Anno: which Citation Fuller professeth to be taken out of the Authentick Records in the Tower.

There passed an Act of Parliament in the 4th year of Henry the 4th, by which it is Enacted, That no Welshman shall be Iustice, Chamberlain. Sheriff, Coroner, nor other Officer in any part of Wales, notwithstanding any Patent to the contrary with the Clause of Non-obstante: and yet without Question (saith my Lord Coke, 12th Rep.) the King might dispense with this Statute: but you see how on the Parliaments resenting the Dispensations the Act had met with, and particularly in Bishops having contrary to the tenor of the Act served the Crown in Secular Employments, the King particularly ad­hered to the exercise of his Dispensative Power in their Case.

It was upon the ground of this Assertion, viz. Of the Crown's being en­titled to Command the Services of all Subjects, that some Papists were em­ploy'd by Queen Elizabeth in Affairs of the State, notwithstanding any disability incurr'd by not taking the Oath of Supremacy. And Viscount Montacute, tho a Roman Catholick, was (as Cambden tells you) sent by her as her Embassadour to the King of Spain, and employ'd too about the Business of the Scots, and to do right to the Protestant Religion. Sir Edward Carne, likewise a Roman Catholick, was sent by her as her Embassador to the Pope.

And as to the sense of many of that Queen's most renowned Ministers of State about the Deprivation of the Nonconformist Divines disabled eo No­mine from their Ministry, being Penal to the People, the Author of certain Considerations tending to promote peace and good will among Protestants, hath mention'd it, that Eight of that Queens Privy Councellors writ a Letter in [Page 52] their favour to the Bishops of Canterbury and London, in the close whereof 'tis said, viz. Now therefore we for the Discharge of our Duties, being by our Vocation under her Majesty bound to be careful that the Universal Realm may be well govern'd according to the Honor and Glory of God, and to the discharge of her Majesty being the Principal GOVERNOR of ALL her SUBIECTS under Almighty God, do most earnestly desire your Lordships to take some charitable Considerations of these Causes that the PEOPLE of THIS Realm may not be DEPRIVED of their Pastors being Diligent, Learned and Zea­lous, tho in some Points Ceremonial they may seem doubtful only of Consci­ence, and not of wilfulness, &c. Tour Lordships loving Friends William Burghly, George Shrewsbury, A. [...]rwick, R. Leic [...]ster, C. Howard, J. Crofts, Chr. Hatton, Fra. Walsingham.

And what sense the House of Commons had in the beginning of the Reign of King Iames the First, of the Disabling of several of the Nonconformist Di­vines being a Gravamen to the Realm, appears by the Petition of that House to the King, Anno 1610. as I find it in Mr. Nye's Beams of former Light, p. 103. viz. Whereas divers painful and learned Pastors that have long time travell'd in the work of the Ministry with good Fruit and Blessing of their Labour have been removed from Ecclesiastical livings, being their free-hold, and from all means of maintenance, to the great grief of sundry your Maje­sty's well-affected Subjects, we therefore humbly beseech your Majesty would be graciously pleas'd that such deprived and silenced Ministers living quietly and peaceably, may be restored, &c.

But, in short, if you consider that the great Cause that excited the Loyal Zeal express'd in the Statute of the First of Queen Elizabeth (and where­by so many Statutes of Harry the 8th against the Papal [...]pations were revived) was that the King and Kingdom might not be disabled by Clergy­mens 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 O [...] 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 [...]tterly renounce and forsake a [...]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.

[Page 53]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 1o. Eliz. and of your Oath therein, and no colla­teral thing.


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 [...]rted by you, that the drift and design of the Statute of 1o. 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.


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' [...]: 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 de [...]gation of your Imperial Crown and Authority Royal, contrary to Right and Consci­ence. For where this your Graces Realm recognizing no Superior un­der [Page 54] God, but only your Grace, hath been and is free from Subjection to any mans Laws, but only to such as have been devised, made and ob­tained within this Realm for the Wealth of the same, or to such other as by SUFFERANCE of your GRACE and your Progenitors, the People of this your Realm have taken at their free liberty by their own Consent to be used among them, and have bound themselves by long Use and Custom to the observance of the same, not as to the observance of the Laws of any Foreign Prince, Potentate or Prelate, but as to the Customes and ancient Laws of this Realm, originally establish d Laws of the same by the same Sufferance, Consents, and Custom, and none otherwise; it standeth therefore with natural equity and good reason, that in all and every such Laws HUMANE made within this Realm, or induced into this Realm by the said Sufferance, Consents and Cu­stom, your Royal Majesty and your Lords Spiritual and Temporal and Commons, &c. have full Power and Authority not only to dispense but also to authorize some elect Person or Persons to dispense with those and all other humane Laws of this your Realm, and with every one of them, as the quality of the Persons and Matter shall require. And the Act after­ward mentions the impoverishment of the People of this Realm by the Im­posts for Papal Dispensations, and refers twice to the Charges of the taxa Camerae, calling them expresly in one place, Impositions taken to the use of the Pope and his Chambers; and in another, the old Tax. And at the removal of these intolerable Charges, as they are call'd in that of the Statute of 1o Eliz. or intolerable Exactions, as they are call'd in the 25th of Henry the 8th; that of the First of Elizabeth (as I said) had an eye in the revival of this of Henry the 8th; and the Consideration of which Statute will be of im­portance to us as to that part of our Promissory Oath that refers to our de­fending the Iurisdictions, &c. united and annex'd to the Imperial Crown of this Realm; that Statute of Henry the 8th having in its Prefatory part ex­press'd the Pope's dispensing here to be in derogation of the King's Imperial Crown and Authority Royal, and there afterwards mentions how the Im­perial Crown of this Realm suffer'd by those Papal Exactions. And the Pre­face of the Statute of 1o Eliz. refers in general to divers good Statutes made in Henry the 8th's time, for the Restoring and uniting▪ to the Imperial Crown of this Realm the Iurisdictions, Authorities to the same of Right belonging▪ and which ushers in the reference to the Statute of the 25th of Henry the 8th: and then in the following Clause 'tis said, that for the repressing of the usurped Foreign Power, and the restoring the Rights, Iurisdictions and Preheminences belonging to the Imperial Crown of this Realm, &c.

Thus then you see that I have fairly shew'd you out of this Statute of Queen Elizabeth, where your Oath is situated, that the Restoration of the Ancient Jurisdiction of the Crown in dispensing, was restored to the Impe­rial Crown of this Realm, the which the Pope had formerly usurped on in Matters both Ecclesiastical and Civil, and which you are obliged to de­fend against any Papal or Popular Usurpations whatsoever. I was enforced for your clearer understanding of this Statute to conduct you to the 25th of Henry the 8th, and where you find several Expressions that make it the right of the Imperial Crown of this Realm to dispense with the disability or incapacity incurr'd by Law. You have there the word REHABILITA­TION, and what is called there the Writ of Perinde valere, which Blount tells you in his [...] is a Dispensation granted to a Clerk, who being defective in his title to a Benefice, or other Ecclefiastical Function is de facto admitted to it. And it takes Appellation from the words, which make the faculty as Effectual to the party DISPENS'D WITH, as if he [Page 55] had been actually CAPABLE of the thing for which he is dispens'd with at the time of his Admission. A. 25. H. the 8th, it is call'd a Writ.

You have in your Oath acknowledg'd the Crown of this Realm to be a Crown Imperial, and if you had not by the Comparing the two Statutes to­gether, found that the Power of Rehabilitation of Persons disabled was re­stored and united to the Crown, as what was anciently due to it, and used by it; yet on the Consideration of the Crown here being call'd Imperial, and of its being a res judicata among all that write of the Power of such Crowns that a Dispensation with Persons in this kind, is allow'd them as one of the jura Majestatis, you ought by virtue of your Oath to be very careful how you deny this mark of Soveraignty to the Imperial Crown of this Realm which you see wants none of the other.

I think I have now let you see that I have here put no forced or wyre­drawn Consequences on you, and would hate to do any thing of that Nature in common Discourse, and about a common or trivial matter, and much more in the concern of an Oath. You know I have often prais'd that Letter in D'Ossal where he reflects on some Men thus, viz. Le sont gens d'esprit, de scavoir & de labeur, qui [...]ont forgè, mais de fort ma [...]vaise foy, ne faīsans Con­science, & n' ayans honte de traitter un cas de Conscience, & si important a la Religion Catholique & a toute la Chrestiente, en chichaneurs & sophistes.

But further yet to let you see that in minding you in point of Conscience, and by virtue of this your Oath; duly to prop up the Regal Power of Dis­pensing with Incapacity, I put no wyre-drawn Consequences upon you, and do with the simplicity that becomes a Christian speak to you ex animo, I shall again give you the Iudgment of Parliament in the Case, and to that end shall first direct you to the Statute of 37o. H. 8. c. 17. that begins, In most humble wise shew and declare to your Highness your most faith­ful, humble and obedient Subjects, that where your most Royal Majesty is and hath always justly been by THE WORD OF God, supreme head in the Earth of the Church of England, and hath full Power and Authority to correct, punish, and repress all manner of Heresies, Errors, Uices, &c. and to exercise all other manner of Iurisdictions commonly call'd Ecclesiastical Iurisdiction, nevertheless the Bishop of Rome and his adherents minding utterly as much as in him lay to abolish, obscure, and delete such Power given by God to the Princes of the Earth, whereby they might gather, and get to themselves the Government and Rule of the World, have in their Councils and Synods Provincial made divers Ordinances and Constitutions that no LAY or Married man should or might exercise any Iurisdiction Ecclesiastical, nor should be any Iudge or Register in any Court commonly call'd Ecclesiastical Court, &c. as by the said Councils and Constitutions Provincial appeareth, which standing and remaining in their effect not abolish'd by your Grace's Laws, did sound to appear to make greatly for the said usurp'd Power of the Bishop of Rome, and to be directly repugnant to your Majesty as Supreme Head of the Church, and Prerogative royal, your GRACE being a LAY-MAN, and albeit the said Decrees, Ordinances and Constitutions by a Statute made in the 25th year of your Reign be utterly abolish'd, &c. But forasmuch as your Majesty is the only and undoubted Supreme Head of the Church of England, and also of Ireland, to whom BY HOLY SCRIPTURE all Authority and Power is wholly given to hear and determine all manner of Causes Ecclesiastical, and to correct Uice and Sin whatsoever. and TO ALL SUCH PERSONS AS YOUR MA­IESTY SHALL APPOINT THEREUNED, that in Conside­ration thereof, as well for the Instruction of Ignorant Persons, &c. [Page 56] and setting forth of your Prerogative Royal and Supremacy: It may therefore please your Highness, that it may be Ordain'd and Enacted, that all and singular Persons as well LAY as those that be now Mar­ried or hereafter shall be Married, &c. which shall be made, ordain'd, constituted and deputed to be any Chancellor, Uicar General, &c. Scribe or Register by your Majesty, or any of your Heirs and Successors, or by any Archbishop, Bishop, &c. may lawfully execute and execute all man­ner of Iurisdiction commonly call'd Ecclesiastical, &c.

Here you see the enacting clause founded on the previous solemn ac­knowledgment of the King's supremacy, and on his having the power given him, not by Parliaments or People, but by SCRIPTURE, to appoint such to be ecclesiastical Judges who were by Custom and by the Laws of Councils and Provincial Synods formerly equivalent to Acts of Parliament, incapaci­tated so to be. And from whence it is consequently apparent that no po­sitive humane Laws whatsoever inflictive of Penal incapacity could against the Right inherent in him by the positive Law of God, oblige him not to dispense with the others by his supreme Power when he found it necessary so to do. For 'tis on all hands confessedly true, that Parliaments can no more then the Bishop of Rome delete such Power as is given by God to the Princes of the Earth.


But because a Parliament declared that such a supreme Power is gi­ven by the Scripture to Princes, you know it doth not follow that it is so. And moreover you know that was a Popish Parliament that so declared it.


But I likewise know that as 'tis in my Lord Chief Iustice Vaughan's Reports in Hill and Good's Case, that if a Marriage be declared by Act of Parliament to be against Gods Law, we must admit it to be so, for by a Law, that is, an Act of Parliament it is so declared; so that Act of Parliament having declared it, that by Holy Scripture all Authority and Power is whol­ly given to the King, and to all such Persons as he shall appoint to hear and determine, &c. tho such Persons were by a lawful Canon incapacitated so to do (a Canon that that Iudge in the words immediately following the o­ther makes to be the Law of the Kingdom as well as an Act of Parliament) we must admit such Power and Authority inherent in the King's Supremacy by the Word of God, thus to supersede incapacity. And whether the inca­pacitating Canons were lawful ones or no, it is not tanti to enquire, since as we know a Power inherent in Kings by the Word of God, cannot be ei­ther by lawful Canon or Act of Parliament taken away: and much more ought such Power to be construed and admitted as inherent in him by the Scripture, while the Act of Parliament continues in being.

But I shall yet bring the acknowledgment of your Prince's Supremacy in this point as thus founded on Scripture, clos [...]r to your Conscience by let­ting you see that you have not only the Judgment of a Popish Parliament in the Case, but of that very Statute of Queen Elizabeth that enjoyns your Oath of Supremacy; for it revives that Statute o [...] Harry the 8th and all and every branches and Articles in it, as you will find it in your Statute-book.


You have mention'd one thing in that Statute of Harry the 8th that doth a little startle me: and that is that he and the three Estates ap­ply'd there the design of keeping up those Canons of Councils and provincial Constitutions that incapacitated LAYMEN, as level'd at the exclusion of the King himself, not only from his Prerogative, but from being in a ca­pacity to exercise ecclesiastical Jurisdiction as supreme head of the Church, as I find by those remarkable words, YOUR GRACE BEING A LAY-MAN.

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You do well to take notice of that, and are therefore not to wonder at it if you should hear your Prince who was a Dissenter to the Church of England, and others concern'd for him, to have apprehensions of what pre­judice might be meant him by some subtle Projectors of Laws, to incapaci­tate all Papists and Presbyterians from acting in any Office in Church or State, however many loyal Persons might be far from intending such pre­judice thereby: his Grace being a Papist, or Presbyterian.


I must confess that if the Kings Power of commanding the Services of all his Subjects be inherent in him by the Word of God, and as such de­clared by Parliament, any Mens endeavours to take away that Power, may well be imputed to great incogitancy.


You say right: and I was hence induced to wonder, that after the Act and Acknowledgment of his Majesty's Prerogative in the Choice of his Officers of State-Councellors and Iudges had thus passed in the first Parlia­ment of Scotland in the late King's reign, viz. The Estates of Parliament considering the great Obligations that lie upon them from the Law of God, the Law of Nations, the Municipal Laws of the Land, and their Oathes of Allegiance to maintain and defend the Soveraign Power and Authority of the King's Majesty, and the sad Consequences that do ac­company an encrochment upon or diminution thereof, do therefore from their sense of humble duty declare, that it is an inherent privilege of the Crown, and an undoubted part of the Royal Prerogative of the Kings of this Kingdom to have the sole Choice and Appointment of the Offi­cers of States and Privy Councellors, and Nomination of the Lords of Session as in former times, and that the King's sacred Majesty, and his Heirs and Successors, are by virtue of that Royal Power which they hold from God Almighty over this Kingdom, to have the full exercise of that Right, &c. any Men could by a following Act of Parliament there be incapacitated to serve their Prince in those Stations.

I shall here tell you, that the incapacitating a few Papists or Quakers Presbyterians or Anabaptists to serve their Prince may to some seem ma­teria l [...]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 Pophnutiu [...], who by citing those words of the Author of the Epistle to the Hebrews, Marriage is honourable in all, &c. turn'd the [Page 58] 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 cuncta [...]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.


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 T [...]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 [Page 59] the Canon Law from ecclesiastical Dignities, yet to shew how these out­casts 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.


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 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 Lay­man [Page 60] 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 Be [...]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 [Page 61] 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 37o. 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 while or since that Statute of the 25th of his Reign com­mitted the exercise of Ecclesiastical Jurisdiction to Lay-men; did or might give occasion to some Evil-dispos'd persons to think and little regard the Proceedings and Censures Ecclesiastical made by his HIGH­NESSE and his Uice-gerent, Officials, Commissaries, Iudges, and Uisitors being also Lay and Married men to be of little or none effect, whereby the people gathereth heart and presumption to do evil, and not to have such reverence to your most Godly Injunctions and Proceedings, as becometh them▪ &c. So I leave it to you to consider how the disabling of any subjects by reason of Religionary Heterodoxy to serve their Prince, did or might give occasion to some evil-disposed Persons to attempt the disa­bling of their Prince on the same account, as I b [...]fore hinted it to you: and as the popular incogitancy of the Power given by God extending to all such Persons as should be employ [...]d under the King, producing the irreverence of their surmises of the incapacity of the Officials and Visitors employ'd by the Vicegerent (and consequently of the incapacity of the Vicegerent himself) did naturally terminate in their gathering heart and presumption to do evil, and to surmise the King's being disabled to exercise all manner of Ecclesiasti­cal Jurisdiction: and to do that which was directly repugnant to his Majesty as Supreme Head of the Church, and to his Prerogative Royal, his Grace being a Lay-man, how you ought still to preserve a tenderness in your thoughts for that Prerogative Royal given him by God's Word of Commanding the Services of all his Subjects by what Laws or Constitutions soever de facto incapacitated. And by the gradual Proceedings I have now mention'd, you ought with horror to think of the incapacitating any one Subject to serve his Prince, as of the first step from a Precipice.


You have provided variety of Entertainment for my Consideration, and have my thanks for it. But suppose I should be so Curious and Inqui­sitive as to ask where in God's Word that Power is given to Princes to em­ploy such Persons as they shall think fit in their service, according to the purport of that Statute?


You may likewise suppose that you would then find my Genius so inquisitive as to ask you where you have been at Church of late years. For you could then go to no Church in England, Scotland, or Ireland without hearing St. Paul's Omnis anima spoken of, Let every soul be subject to the higher Powers, whether he be Apostle, or Evangelist, Prophet, Priest, Clergy or Layety, whether he be of the People diffusive or representative, and the like. And as the well-drawn Effigies of a man seems to look on every one in the Room, so hath the Picture of the Regal Power drawn by the [Page 62] Divines of the Church of England, appear'd to cast its Eye on every one, and been made as it were Vocal, and saying to every one, For he is the Minister of God to thee for good. And the good old Book call'd God and the King that you have read over and over, hath told you, that the Bond of the King's Subjects Obedience to his Majesty is inviolable, and cannot be dissolv'd.

And indeed the thing being so plain by the Law of Nature, which being written in man's heart is the very same (so far forth as it is yet undefaced) with the Law of God reveal'd in the Word, it is not tanti to raise Moot-Points about this, relating to Scripture.

I doubt not but you remember it in my Lord Herbert's Harry the 8th, that there being a Rebellion of many of the Commonalty, A. 1536. and the Rebels sending the King their Grievances, and one whereof was, That his Grace had ill Councellors, and of mean Birth (among which Cromwel was not forgotten) and the King sending an Answer penn'd by himself as to their Grievances, he did therein upbraid them for medling in the choice of his Counsellors, and command their acquiescence therein on the grounds of Na­ture and of his being their Natural Liege-lord.


Well Sir: Let it for the present pass as a datum or concessum, as you will have it, that the Obedience of Subjects, in serving their Prince is founded on the grounds both of Nature and Scripture. And I shall moreover allow it to you, that if you had an Enthusiast to deal with, and such who as you said do outrage the 13th of the Romans out of the Apocalypse, you might out of Brightman's Revelation of the Apocalypse, shew him out of that part of Holy Scripture sufficient Authority for the King's particularly making Cromwel his Vicegerent. For he there on the 14th Chapter, and the 17th, and following Verses, saith, This Angel is Thomas Cromwel who lived in the days of Harry the 8th, that most mighty King, and was a man of great renown and place in our Kingdoms, being the Earl of Essex, and Lord Keeper of the Privy Seal, who came out of the Temple, and being a sincere favou­rer of pure Religion. He had a Sickle in his hand, being made the King's Deputy in all Ecclesiastical Matters: and it was a sharp one, as with which he sets stoutly and deliberately to his work, and yet he had no Crown or Diadem to grace his head withal, being a Minister rather to put another Man's Power in Ure, then any that wrought by his own Power and Authority. And he on Verse the 18th makes the other Angel to be a Martyr: viz. Tho. Cranmer, and refers the meaning of the words, He cryed with a great voice to him that had the Sickle, to Cranmer, because (saith he) in the days of Harry the 8th, he inflamed the mind of Tho. Cromwel, by his words, with a desire to make a Vintage.


I thank you for diverting me with that passage of Brightman: but I can refer you to another Writer of our Church, whose Authority will go further with us then Brightman's, and who hath recorded it, that the great figure that Cromwel made both in the Church and State, and his and Cran­mer's acting together in concert, and by joynt Councels both in Church and at the Helm of State, was so highly fortunate to the Reformation. You may find this observed by Archbishop Parker in his De Antiquitate Ecclesi [...] Britannicoe, p. 530. where he saith, Namque profligato Papa, & susceptâ Ec­clesioe Anglicanoe defensione, curâ & tutelâ, Rex excelsi [...]ing [...]ii, & multa­rum rerum usu peritum, Thomam Cromwellum Vicarium suum in spirituali­bus generalem designavit. Hic cum Thoma Cranmero Archiepiscopo tan­quam in puppi sedit. clavumque Ecclesioe Anglicanoe tenuit, proram (que) à papali littore avertit, & in Christianum portum reduxit.

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Was, Vicar-general to the King in Spirituals, Cromwel's style for his Office, as the Archbishop there termed it.


I am apt to think it was not. I never saw any Copy of his Patent or Commission for it. The Acts of Parliament in H. the 8 [...]h's time style him, The King's Vicegerent, &c. And the Statute of 37o. H. 8. beforemention'd that speaks of Bishops Vicars-General useth only the Style of Vicegerent for Cromwel's Office. And I have observ'd in his Injunctions to the Clergy, that he styles himself Lord Privy Seal, Uice-gerent to King Henry the 8th, for all his Iurisdiction Ecclesiastical within this Realm, &c.

But the word Vicar being perhaps by the envy of the Monks put on him and his Office in common Discourse (the word Vicar in the Proper significa­tion of it, signifying a Servant to a Servant, according to that in Martial, Esse sat est servum, jam nolo Vicarius esse) the Archbishop speaking Cum vulgo might then call him the King's Vicar-general, and so others since.

I should before have mention'd what he saith, p. 323. speaking of Crom­wel, Inter hunc & Cranmerum summam necessitudinem Evangelium concilia­vit, ut dum ille Experientiâ, hic Doctrinâ c [...]nctos ante [...]elleret, tum utri (que) Regi intimi & chari essent. Ex horum Consilio, & impiis atque odiosis Papoe & Wolsoei Cardinalis Actis summum supplicium, & exitium Romanoe Curioe divinitùs paratum est.


You have enough minded me of the King's dispensing with the disabi­ity incurr'd by the Canons both in the C se of Cromwel a Lay-man inter­medling in Ecclesiastical Matters, and of C [...]anmer a Clergyman intermed­ling in secular, proving so necessary to the Reformation, and accordingly as Queen Elizabeth's dispensing with disability proved so to the Establishment of the present Hierarchy of the Church of England. And I shall most seri­ously consider what the Act of the 37th of H. the 8th, hath in such plain and liquid terms declared of the Power given to the King by Scripture, and to all such Persons as he shall appoint, to exercise Ecclesiastical Iurisdiction, however incapacitated so to do by lawful Canons and Constitutions, and which were by that Eminent Iustitiary you mention'd held Equivalent to Acts of Parliament: and shall grant that i [...] never so many Acts of Parlia­ment had attempted to deprive the King of a Power inherent in him by Scripture, such attempt would be nugatory, and the fremuerunt gentes against it, would be but the Peoples imagining a vain thing. And I shall consider it how far by clear and necessary Consequences, and no wire-drawn ones, it follows from what is declared by this Act of Parliament, as to the King's being authorized by Scripture to choose some sorts of Officers to serve the Crown in Church and State, that he is so authorized to choose others; in like manner as you mention'd it to me declared by the Scotch Act of Parliament, that the King by virtue of the Royal Power he holds from God All-mighty is to have the SOLE choice and appointment of the Officers of the State, &c. But (I Pray) do not many other Acts of Parliament in Harry the 8ths time, whereby the Royal Prerogative is so much advanced, and particularly that of the 25th of Harry the 8th, that sets up the Dispen­sative Power, seem to make it depend on Statute-Law? And may it not seem to be more than a flaw in the Diamond of Prerogative, and a great depretiating of it in cutting it out (as it were) into four, by making its Establishment depend on the King and three Estates?


I shall therefore here once for all tell you, that the occasion of so many mens mistake in thinking so many of those Acts of Parliament in Harry the 8th's time prejudicial to Prerogative, as seeming to found it on Statute-Law, is their not considering that such Statutes were but declara­tory of old Laws, and not introductive of new ones. My Lord Primate [Page 64] Bramhal in his Schism guarded, p. 155. saith, I profess clearly I do not see what advantage Henry the 8th could make of his own Laws, which he might not have made of the ancient Laws, except only a gawdy Title of Head of the English Church which survived him not long, and the Tenths and first­fruits of the Clergy, &c.

But you may as fully take notice how Harry the 8th throughout his great Declarative Laws so often declares in effect his Regal Power to be given him by God. My Lord Coke in his Caudry's Case, instanceth in the famous Statute of 24o H. 8. c. 12. and calls it declaratory of the ancient Law, and you see how it is declared there, That the King is by the good­ness of God furnish'd with Prerogative, &c. And the Statute of 37o H. 8. begins as I shew'd you with the three Estates, DECLARING, That the King's Majesty is and hath always justly been Supreme Head in the Earth of the Church of England by the Word of God. You know too how the style runs in another of his Acts of Parliament, viz. The Bishop of Rome and See Apostolick, contrary to the great and inviolable Grants of Iurisdictions by God immediately to Emperors, Kings, and Prin­ces, &c. And thus tho there are various Statutes in his Reign, and parti­cularly that of the 25th year of his Reign, c. 19. by which it was Enacted, That the King's Highness shall have Power and Authority to nominate and assign at his pleasure Two and thirty persons, whereof Sixteen to be of the Clergy, and Sixteen of the Temporalty of the Upper and Nether House of the Parliament to view, search, and examine the Ca­nous, Constitutions and Ordinances Provincial, and that such of them as the King's Highness and the said Two and thirty or the Major part of them shall deém and adjudge worthy to be continued, kept and obey'd, shall bē from henceforth kept obey'd and executed within this Realm, so that the Kings most Royal assent under his Great Seal be first had to the same, &c. and tho according to the ancient usage of the Realm as well as to those Canons Lay-men were not only incapacitated to make Ecclesia­stical Constitutions and Canons, but Kings, Bishops, or Noblemen who be­lieved that the Decrees of the Bishops of Rome may be violated or shall suffer them so to be, are in the Canon Law anathematized, yet as this enacting Clause was made on the Clergy's Petition to the King (as the Preamble of the Act mentions) that those Constitutions and Canons may be commit­ted to the Examination and Iudgment of his Highness, and of Two and Thirty persons of the King's Subjects, whereof sixteen were to be of the Upper and Nether House of the Parliament, of the Temporalty; and all the said Two and thirty persons to be chosen and appointed by the King's Majesty, &c. and be empower'd to do what I mention'd out of the enacting Clause (and whereby the King alone was in effect both according to the Clergy's Petition, and the enacting Clause vested with the jus vitoe & necis of the Canons) so in a Memorable Epistle of Harry the 8th. Printed before the Reformatio legum Ecclesiasticarum, and intended as a draught for a Publication or Promulgation of the King's new Ecclesiastical Laws, after the draught of them had been by those Clergymen and Laymen prepared for his Royal Consideration, and been by him establish'd, he there declares his Power of so doing to be pursuant to his Supreme Headship of the Church of England recogniz'd, quemadmodum divini atque humani juris tatio po­stulat, and mentions, the Power granted to him and his Ancestors ipso jure divino, as recognized, and applies to himself the words Sapientioe, cap. 7. Audite Reges & intelligite quoniam data est a Domino potestas vobis, &c. and founding his Power of making Ecclesiastical Laws on that jus Divinum, he saith, En vobis authoritate nostra editas leges damus, &c.

[Page 65]And here I shall tell you that as my Lord Coke in Cawdry's Case calls the Act of the 24th of H. 8. beforemention'd, An Act declaratory of the An­cient Law; so he likewise doth the Act of the 25th of his Reign, c. 21. that so much props up the Dispensative Power. And I assure you that they look but at a few things in general, and in that Statute in particular, who think that the Dispensative Power inherent in the King lost any ground thereby: and he who takes the Statute altogether, will find that that Power if it seem'd in any words to go back from it self, was but by such retreat to leap the further forward.

For if you will take a glancing view of the intent of that Statute to that end, you will see that instead of that Law making it self to be the Foun­tain of the Dispensative Power, it makes the Dispensative Power to be the very Fountain of a great part of the Common Law it self: for its style gives you the figure of our Laws, as either devised, made and obtain'd within this Realm for the wealth of the same, or such as by SUFFERANCE of your Grace and your Progenitors (which is a Dispensation by way of Permission or Connivence) the People of this your Realm have taken at their free Liberty by their own Consent to be used among them, and have bound themselves by long use and Custom to the observance of the same, &c. And the King in his Legislative Capacity having with the con­sent of the three Estates superseded the Pope's Dispensative Power that had so long Usurp'd on the King's Laws, and having provided that the Money that should be paid as Fees for Dispensations should be rais'd and mode­rated by their Consent, obtain'd from them a Clause in the Act containing so great a deference to the Dispensative Power of the Crown, as that after the Act had authorized the Archbishop of Canterbury and his Successors to grant such Dispensations, Licences and Faculties as were accustomed to be had from the See of Rome, and not grant any others till the King, his Heirs and Successors, or their Councel were first advertised thereof, and determined whether they should pass: It Provided that if it were thought and determin'd by the King, his Heirs and Successors, or their Councel, that Dispensations, Faculties, Licences, or other Writings in any such Case UNWONT shall pass, that then the said Archbishop or his Commissary having Licence of His Majesty, his Heirs and Suc­cessors for the same shall dispense with them accordingly: and in Case of his refusing to dispense, that any other two Bishops, the King, his Heirs and Successors should nominate, should be appointed to dispense in such Cases. And this Act with all the Clauses in it, you find reviv'd by the 1st. of Elizabeth, c. 1.

The Pope's rehabilitations did customarily extend to Lay-men as well as Clergy-men, and that particularly in case of Heterodoxy in Religion, then call'd Heresy, which both by ancient usage and Acts of Parliament loaded men with various incapacities. And his relaxing the incapaci­ties that relate to Clergy-men, any one may see by the Taxa Cameroe and the Fees thereby payable, viz. in the Age of those who were to take Orders and were defective in some of their Members, and in the Case of Clergy-mens incapacity incurr'd by irregularity. But after this Act of the 25. of H. the 8th, had shew'd the World the Authority the King had to rehabilitate and dispense here in his own Country both as to matters customarily dispens'd with at Rome, and such as were not so, and how small the Fees were for the same, the bringing rehabilitations, and Perinde valere's from Rome to England, was like carrying Coals to New-Castle.

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I was not satisfy'd with your extending the King's Power of Dispen­sing here as far as the Pope's reach'd, and it seems you extend it further. I hope you intend not to bring in here the Tax of the Apostolical Chancery, and which Mr. Crashaw translating into English in the year 1625. call'd it, The Rates of the Pope's Custom-house, and wherein are contain'd Indulgences for Sins past, present and to come, and such a kind of Pardoning Power as in The historical Narration of the first Fourteen years of King James, appear'd to that King so scandalous in the Case of the Draught of the Earl of Somer­set's Pardon, and in which Sir Robert Cotton having been desired by the Earl to find out the largest Pardon that former Presidents could shew, brought him one that was made by the Pope to Cardinal Wolsey, and by a fac simile after which, the Draught of the Earls ran for Pardoning all manner of Felonies and Treasons committed and to be committed.


Premising to you that the Christian offices do more call on you to mind what Sins you dispense with in your self, then what the Pope dispen­seth with in others, and that this present Pope hath spoil'd the Trade of raillery about Indulgences by spoiling the Trade of them, and damning so great a number of them, and that in his vast Supplies of Money toward the taking of Buda, the Souls in Purgatory contributed nothing, and that Sir Paul Ricaut in the Life of this Pope, having done right to his Vertue, in mentioning his having suppress'd an Office of the Virgin Mary, and a multi­tude of Indulgences, hath further judiciously observ'd, That Wisemen at the Councel of Trent finding that the Doctrine of Indulgences was not solid, did but slightly touch it; and tho yet it was the CHIEF matter for which that Councel was assembled, nothing was determin'd therein, but only that Indul­gences be used with such Moderation as was approved by the Ancient Custom of the Church, that is, not at all; I say premising all this, I shall mind you that I have said enough already to let you see that it is only the ancient Dis­pensative Iurisdiction of the Crown that I direct you to prop up, and more particularly with respect to the Case before you.

While we are considering the Obligation of an Oath, it were pity that the thoughts of either of us should be embarras'd with Moot-points; and so without troubling you with a reference to More, f. 463. where all the Power of the Pope is not given to the King by the 25th of H. the 8th, but is extinct, Hallywel's 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 1o 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 Lay­men, 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, [Page 67] 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 Commutation­Money 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 [Page 68] 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?


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 1o Eliz. beforemention'd.


I can easily direct you to such a Writer of our Church who hath done the thing to the universal Satisfaction of the Inquisitive as to this Point, and that is the Lord Primate Bramhal in his Book of Schism Guarded.

He saith there, in p. 330, and 331. As our Grievances, so our Reforma­tion was only of the abuses of the Roman Court. Their bestowing of Prela­cies and Dignities in England to the Prejudice of the right Patrons; Their Convocating Synods in England without the King's leave; Their Prohibiting English Prelates to make their old feudal Oaths to the King, and obliging them to take new Oaths of Fidelity to the Pope; Their imposing and receiving Tenths and first Fruits, and other Arbitrary Pensions upon the English Clergy; and lastly, their Usurping a Legislative Iudiciary and Dispen­sative Power in the exterior Court by Political Coaction; these are all the branches of Papal Power which we have rejected. This Reformation is all the Separation that we have made in point of Discipline. And for Do­ctrine we have no difference with them about the old Essentials of Christian Religion: and their new Essentials which they have patch'd to the Creed are but their erroneous, or at the best, probable Opinions; no Articles of Faith. Thus then according to these measures, you see how much the hinge of the Reformation turns on the Usurpation of the Papacy in Dispen­sing: for in all these particulars enumerated, the Pope dispens'd with the King's Laws. And he had before in p. 26. said, This Primacy neither the Ancients nor we deny to St. Peter, of Order, of Place, of Preheminence. If this first movership would serve his turn, the Controversie were at an end for our parts. But this Primacy is over-lean; the Court of Rome have no gusto to it. They thirst after a visible Monarchy on Earth, an abso­lute [Page 69] Ecclesiastical Soveraignty; a Power to make Canons, to abolish Canons, to dispense with Canons: to impose Pensions, to dispose of Dig­nities, to decide Controversies by a single Authority. This was that which made the breach; not the Innocent Primacy of St. Peter. And afterward in p. 149. he saith, But I must contract my Discourse to those Dispensations that are intended in the Laws of Henry the 8th, that is the Power to dis­pense with English Laws in the exterior Court: Let him bind or loose inwardly whom he will: whether his Key erre or not, we are not con­cern'd. Secondly, As he is a Prince in his own Territories, he that hath Power to bind, hath Power to loose. He that hath Power to make Laws hath Power to dispense with his own Laws. Laws are made of Common Events. Those benign Circumstances that happen rarely, are left to the Dispensative Grace of the Prince. Thirdly, As he is a Bishop, whatever Dispensative Power the ancient Ecclesiastical Ca­nons, or Edicts of Christian Emperors give to the Bishop of Rome within those Territories that were subject to his Iurisdiction by Humane right, we do not envy him: so he suffer us to enjoy our ancient Privileges and Immunities freed from his Encroachments and Usurpations. The Chief ground of the ancient Ecclesiastical Canon was, let the old Customs prevail. A possession or Prescription of Eleven hundred years is a good ward both in Law and Conscience against an Human Right, and much more against a New pretence of Divine Right. For Eleven hundred years our Kings and Bi­shops enjoy'd the sole Dispensative Power with all English Laws, Civil and Ecclesiastical. In all which time he is not able to give one instance of a Papal Dispensation in England, nor any shadow of it when the Church was formed. Where the Bishops of Rome had no Legislative Power, no Iudiciary Power in the exteriour Court, by necessary Consequence they could have no Dispensative Power. He then in p. 169. mentions the said Statute of 25. H. 8th. and having referr'd to the Proviso, there to shew, that its intent was not to vary from the Church of Christ in any other things declared by the Holy Scripture, and the Word of God necessary to Sal­vation, he saith then followeth the scope of our Reformation; only to make an Ordinance by Policies necessary and convenient to repress Vice, and for good Conservation of the Realm in Peace, Unity and Tranquillity from ravine, and spoil, ensuing much the ancient Customs of this Realm in that behalf: not minding to seek for any relief, succours, or remedies for any worldly things, and Humane Laws in any cause of necessity, but within this Realm at the hands of your Highness, your Heirs and Successors Kings of this Realm, which have and ought to have an Imperial Power and Authority in the same, and not obli­ged in worldly Causes to any other Superior.

Thus then you see this Prelates sense of how much the taking away the Pope's Dispensative Power here, and restoring that Power to the Crown, was the Soul of the Reformation, and tota in toto of it. And this Act you see revived by the First of Elizabeth without garbling it in the least; and the Dispensative Power thereby restored to her, her Heirs and Successors, and a Declaration, that no Subjects of the Realm need for any worldly things and Humane Laws in any Cause of Necessity seek for any relief, but within this Realm at the hands of our Soveraign, as aforesaid. And I shall tell you that the Bishop in the next Page refers to the Sta­tute of the First of Eliz. and saith on his view of both Statutes, Whatsoever Power our Laws did devest the Pope of, they invested the King with it. And of this, the Power of Rehabilitating any of his Lay or Clerical Subjects is a part, as was beforesaid.

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You have cited somewhat out of this Great Champion for the King's Supremacy, and for the Church of England, and reputed to be the most clear Vindicator of it from Schism our Church hath had, which hath created more anxiety in my mind about the Assertory part of the Oath then any thing hath done. For the words in the Oath are, I do utterly testify and declare, &c that no Foreign Prelate or Person hath or ought to have any Iurisdiction, Power Ecclesiastical or Spiritual within this Realm, and you have brought in the Primate granting that the Pope hath Power here to bind or loose inwardly, and asserting that he hath here a Spi­ritual Power.


You judge right of the Bishop's Opinion, and which is indeed ex­press'd throughout his whole Book. He tells us in p. 25. That St. Cyprian made all the Bishopricks in the World to be but one Masse, whereof every Bi­shop had an entire part: And he saith in p. 60, and 61. That neither King Harry the 8th, nor any of our Legislators did ever endeavour to deprive the Bishop of Rome of the Power of the Keys, or any part thereof; either the Key of Order, or the Key of Iurisdiction: I mean Iurisdiction purely Spiri­tual which hath place only in the inner Court of Conscience, and over such Per­sons as 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 [...]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 [...]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 1o 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 Exc [...]ption.

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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: [Page 72] 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 'tis otherwise: for he there Confirms it in effect as 'tis in the Article.

Now you know how much Simplicity becomes an Oath, and how requi­site it is that it should be conceiv'd in plain and liquid terms, and taken in the Imposer's sense and without mental reservations, and that you should Swear therein to no dogmatical Assertion; and as to which Mr. Nye saith well in his Observations on that Oath, to swear positively to any dogmatical Assertion is not required. It would be a taking the Name of God in vain: for if it be a certain and undoubted truth in it self and to others, as are Principles of Reason and Articles of Faith, an Oath is vain, for it ends no strife. If doubtful and a question whether true or not, tho such an Oath puts it out of question that I believe so, yet not that it is a truth. My belief, tho never so much evidenced and confirm'd, doth not make a doubtful matter in it self more credible; nor is one man's believing an Assertion just ground for another man to believe the same. Such an Oath therefore is in vain, and not a fit Medium to end such a Controversy.

Now how far your declaring in your Oath that no foreign Prela [...]e hath nor ought to have any Iurisdiction Spiritual within this Realm, and the In­terpretation of it pursuant to the 37th Article delivering the Plain words, The Bishop of Rome hath no Iurisdiction, &c. may bring you within the Verge of swearing what is dogmatical, I leave you to judge: but shall take the liberty to tell you, that when I see some of our Laws, and particu­larly this about our Oath girdled with so many Interpretations like new tender-sided Ships, I shall be apt to take little pleasure in embarquing my Conscience in such an Oath, and am apt to call to mind the Censure which Mr. Milton's Character of the Long Parliament of 40. fulminates against his Countrymen, and by which he so much disables our understandings as to Political Government; and saith, that the Sun which we want, ripens Wits as well as Fruits, and as Wine and Oyl are imported to us from abroad, so must ripe understanding, &c.


But however, tho our Wine and Oyl are imported to us from abroad, our Dispensations are not, and we have no Occasion to send Gold to Rome for Lead: And I assure you, he who shall consider that the English Vir­tuosi were the last that did receive the yokes of the old Imperial and later Papal Power of Rome, and the first that threw them off, will tho we are Crasso sub aëre nati, have no cause to vilifie our understandings, but ra­ther to envy their triumphs over Infallibility so call'd. And perhaps when I shall have told you of another passage of the Bishop, P. 59. in his Schism guarded, you will think the Eyes of our Ancestors understandings did look out sharp when the two Statutes of the 25th of H. 8. and 1o Eliz. were made; and there he saith, Suppose any of our Reformers have run into any Excesses or Extremes, either in their Expressions, or perhaps in their Actions (it is a difficult thing in great changes to observe a just mean) it may be out of Humane Frailty, as Lycurgus out of hatred to Drunken­ness cut down all the Vines about Sparta, or it may be out of Policy, as men use to bend a Crooked rod as much the contrary way, or as expert Masters of Musick do sometimes draw up their Scholars a Note too high, to bring them to a just tone, what is that to us as long as we practice the Mean and maintain the Mean, and guide our selves by the certain line and level of Apostolical and Primitive Tradition?

There is no doubt but in the framing of the Statute of 1o Eliz. and the Oath therein, regard was had to the Oath in the 35th of H. 8. c. 1. viz. [Page 73] I having now the veil of Darkness of the Usurped Power, Authority and Iurisdiction of the See and Bishops of Rome clearly taken away from mine Eyes, do utterly testify and declare in my Conscience, that neither the See nor the Bishop of Rome, nor any foreign Potentate hath nor ought to have any Iurisdiction, Power or Authority within this Realm, neither by God's Law, nor any other just Law or means, &c. and that I shall never consent nor agree that the aforesaid See or Bi­shop of Rome, or their Successors, shall exercise or have any manner of Authority, Iurisdiction or Power within this Realm, &c. And this Oath remain'd the same all the rest of his Reign, and all Edward the 6th's time: and as to which Queen Elizabeth changed the Expression of Supreme Head: and both Harry the 8th, and She having their Eyes on the effect of Papal Excommunications, and concern'd to have the nullity of them believed by their Subjects, might seem according to the Primate's Expres­sion to bend the crooked rod of the Papal Iurisdiction overmuch the contra­ry way in their Oaths, that so it might come to that just straitness referr'd to according to the Primate's measures of it.

But after all I shall tell you, that I think no Political respects can justifie the putting doubtful Expressions into an Oath, or the taking of one with mental reservations of a sense different from the Common one of the words, and I do therefore joyn issue with you in the Point, that the Clause in the Oath, That no foreign Prelate hath or ought to have any Iurisdiction, &c. being the very same in the 37th Article, (and in the Interpretation of which Article, King Iames his Canons have, as you said, made you a sharer with the Clergy) you and all others who take the Oath may be thankful for the benefit of that King, having further exercised the Dispensative Power of his interpreting the whole intent of that Oath: And that Inter­pretation of it which hath made the Coast of the Oath clear to you in this Point, you will find agreeing to what he hath in our Language Publish'd to the World, and dedicated to eternity. For he having in his Premonition to all Christian Monarchs mention'd how he caus'd the House of Commons to Reform a Clause they had put into the Oath of Allegiance derogatory to the Pope's spiritual Power, viz. That the Pope had no Power to Excommunicate him, and that he was ready to consent that the Bishop of Rome should have the first Seat, and be Patriarch of the West, and be Primus Episcopus inter omnes Episcopos & princeps Episcoporum, so it be no otherwise but as Peter was, Princeps Apostolorum, takes occasion in his Apology for the Oath of Allegiance to let the World know his Royal judgment of the intent of the OATH of SUPREMACT; and there in Confutation of the Pope's Breves, and Bellarmine's Letter, he saith in p. 108. that the rendring Christian Kings within their own Dominions, Governors of their Church as well as of the rest of their People, in being Custodes utriusque tabulae, not by making new Articles of Faith, &c. but by 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 [Page 74] 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 Suprema [...]y as well as of Allegiance, there was no wrong intended to St. Peter, or his Successors.


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.


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 re­gar [...] [...] 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, 'tis order'd, [Page 75] 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 Bishop hath or ought to have any Iurisdiction in the forum internum wanted no relief in their Case from the Dispensative Power of interpretation.

Nor did those of the Church of England who convers'd with the Statute­Book want the Crown's interpretation of this Clause in the Oath; for the scope of the Statute of the 35th of H. the 8th, that enjoyn'd the old Oath of Supremacy (and from whence this Clause in the New one had its rise) was not to break the Measures of St. Cyprian about the Unity of Episcopal Power, but in effect to repress the Usurp'd independent Coactive Power of the Bishop of Rome, and which several of the following words in that Oath sufficiently evince, and which did bind the Swearer to defend and main­tain all other Acts and Statutes made or to be made within this Realm for the Extirpation and Extinguishment of the ururped and pretended Authority, Power and Iurisdiction of the See and Bishop of Rome, &c. And Queen Elizabeth finding the Oath thus, at her coming to the Throne, she like a wise Reformer, would not make any breach in the World wider then necessity required; and probably supposing that mens Allegiance ha­ving been used to the yoke of several words in that Oath that related to the renouncing and farsaking of foreign Iurisdiction, would draw more qui­etly in the same, and that according to the Rule of quod necessario subintelli­gitur non deest, there being no solutio continui imagin'd by any to be de­sign'd in the Unity of the Episcopal Power, when the Clause of utterly testifying and declaring, that neither the See nor Bishop of Rome hath nor ought to have any Iurisdiction, Power or Authority within this [Page 76] Realm, &c. was inserted in the old Oath, it ought to be judged that no­thing derogatory to the order of Bishops could be intended in the Clause of the new Oath by her introduced. And according to the Rule of Analogum perse positum, &c. Jurisdiction being to be taken for Coactive Jurisdiction, the Clause relating to any foreign Prelates having here no Iurisdiction hath been still meant of none Coactive. Mr. Rogers therefore writing on the 39 Articles, hath thus fairly commented on that Clause in the 37th, The Pope hath no Iurisdiction, &c. His Iurisdiction hath been and is justly renounced and banish'd out of England by many Kings and Parliaments, as by King Ed­ward 1st, 3d, and 6th: by King Richard the 2d, Harry the 4th, 6th, 8th, and by Queen Elizabeth, and by our most noble King James.

But that the Church of England intended no War against the Unity of Episcopacy by the Canons of 1640. (which yet have the words of Popery's being a gross kind of Superstition, and of the Mass being Idolatry, and do in­inflict a temporary disability, namely that of Excommunication on Popish Recusants) may appear by the tenderness there used to the Church of Rome in sparing to impute the Superstition of Popery to that whole Church by name. And the 6th Canon, having mention'd the Convocation's being desirous to de­clare their sincerity and constancy in the profession of the Doctrine and Disci­pline Establish'd in the Church of England (i. e. the Doctrine of the 39 Articles) and to secure all men against any suspicion of revolt to Popery, or any other Superstition, and enjoyn'd a new Oath against all innovation of Doctrine or Discipline to be taken by the Clergy (the assertory part whereof hath in it an Approbation of the Doctrine and Discipline or Government established in the Church of England, as containing all things necessary for Salvation, and the Promissory part, a Promise not to endeavour to bring in any Popish Doctrine contrary to that which is so establish'd, &c. and not to give consent ever to subject it to the Usurpations and Superstitions of the See of Rome) Mr. Bagshaw in his Argument in Parliament concerning those Canons, took occasion to criticise on the not subjecting out Church to the Usurpation and Superstitions of the See of Rome, and to call it a Nega­tive Pregnant; that is to say (as his words are) you may not subject the Church of England to the See of Rome, but to the Church of Rome you may. Now there is as much difference between the See of Rome and the Church of Rome, as betwixt Treason and Trespass, and this appears plainly by the Sta­tute of 23. Eliz. c. 1. where it is said, that to be reconciled to the See of Rome is Treason: but to be reconciled to the Church of Rome is not Treason; for then every Papist would be a Traytor, being a Member of the Church, and therefore reconciled to it. Now the See of Rome is nothing else but the Pa­pacy or Supremacy of the Pope, whereby by virtue of the Canon, unam San­ctam, made by Pope Boniface the 8th, he challengeth a Superiority of Iuris­diction and Correction over all Kings and Princes upon Earth: and those Persons which take the juramentum fidei contain'd in the end of the Council of Trent, which acknowledgeth this Supremacy, are said to be reconciled to this See. The Church of Rome is nothing else but a number of Men within the Pope's Dominions and elsewhere professing the Religion of Poperty: and that the Clergy had an ill meaning in leaving this Clause in the Oath thus loose, I have some reason to imagine when I find it in their late Books, that they say the Church of Rome is a true Church, and Salvation is to be had in it.

And if it were tanti after having said so much, to say yet any thing more to prop up the safety of your taking the Oath of Supremacy with the Clause whose sense hath been propp'd up by so many Acts of the Dispensative Power of interpreting, I could tell you that in Sir Iohn Winter's Observa­tions [Page 77] on the Oath of Supremacy, Printed A. 1679. he having there consi­der'd Queen Elizabeths interpretation in the Admonition, and the Confirma­tion of that Admonition by her Majesty in Parliament by the Proviso in the Statute of 5o Eliz. c. 1. and the whole drift of the Statute 1o Eliz. by which the Oath was enacted, and what Bishop Carleton and the Primate Bramhal writ of the ancient Jurisdiction restored to the Crown by that Sta­tute, and that on the whole Matter the design of the Oath was not to invest her with the exercise of the spiritual Jurisdiction left by Christ to his Apo­stles and their Successors, but to leave that entire to them, saith at the end of his Book, that it is not the true meaning of the Oath explain'd in manner as abovesaid, which makes many of the Roman-Catholicks refuse to take it, &c. and then makes the Explanations not being known to all, and their intricacy, and the constant tendring of the Oath for so many years without the aforesaid Explanation, likely to give just Cause of Scandal, and thereupon he wishes that that Oath, and the other of Allegiance which are required of them under so great Penalties, may be clear'd of those doubtful Expressions in them which cause their scruples, &c. whereby they may to the entire Satisfaction of His Majesty and the Nation, fully testifie the Allegiance and Fidelity of faithful Subjects and true Patriots, and no longer remain as they generally now do distrusted, &c. But there was another Book that year Publish'd by a Roman Catholick, of which the title was A seasonable Discourse shewing how that the Oaths of Allegiance and Supremacy (as our Laws interpret them) contain no­thing which any good Christian ought to boggle at, and where the Saying of Tertullian is quoted, Bonae res neminem scandalizant, ni [...] malam mentem, &c. and where having taken notice of the Queen's Admonition, and the Proviso of the Statute of 5o Eliz. and the 37th Article, and the Iudgments of the Bishops, Bramhal and Carleton, as Sir Iohn Winter had done (and for the same purpose) giveth his Judgment that the taking of those Oaths gives no Scandal: and he in p. 38. averrs, that Sir John Winter told him many years ago that he had the Iudgment of Sorbouists, Secular Priests, and Iesuites, that he might take the Oath of Supremacy, declaring the sense which the Law allows. And I shall here by the way take notice that as to the Oath of Al­legiance, F. Cressy saith in his Epistle Apologetical, p. 111. that few Roman Catholicks (if any at all) would refuse that Oath if that unlucky word hereti­cal were blotted out, &c. or if they might change heretical into, contrary to the Word of God, which (he saith) he verily believes was the sense intended by King James.

But now after all this said, I shall tell you that according to what is ob­serv'd by the generality of Writers, o [...] Princes easing their Subjects by their Dispensative Power of interpreting their Laws, viz. That they take occasion then to intermix with such interpretation somewhat else that may advance their Power; there were Fears and Iealousies that some of these foremention'd interpretations, tho lessening the spiritual Power of the Crown might enlarge its temporal, and particularly such as in the Queen's Admoni­tion mention'd the Duty, Allegiance and Bond acknowledg'd to be due to Harry the Eighth, and Edward the Sixth: and (as I partly before hinted) such as in the Proviso in the Act of the 5th of the Queen, that ra­tifying the Admonition hath in it the additional words of acknowledging in her Majesty, her Heirs and Successors the Authority that was challen­ged and lately used by Harry the Eighth, and Edward the Sixth, and such as in the 37th Article explain'd the Queen's Power by that given by God himself to all GODLY Princes in Scripture (and where notwith­standing the Word Godly being put in there to gild the Pill of the Absolute Power of the Iewish Kings, and to make it be the more easily swallow'd, the [Page 78] real meaning was the Power given to all the Iewish Kings: for the right of their Power depended not on their Godliness) and such as in the Canons of King Iames ipso facto Excommunicate all that do not give the King the same Authority in Causes Ecclesiastical, not only that the Godly Kings had among the Iews, but what the Christian Emperors had in the Primitive Church. And there too notwithstanding the word Christian might be for the like reason put in as that of Godly was, and to cause the owning of that absolute Im­perial Power, which pursuant to the Lex Regia was used by the Christian Emperors as well as their Heathen Predecessors in punishing Heterodoxy ad libitum, the meaning of the Canon was not to devest Heathen Emperors of their right of judging about Matters of Religion, and as to which Grotius in his Letter to the States Embassador, having said, neither would Paul have appeal'd to Nero, had he judged that no right of Iudging in a Case of Religion belong'd to him, addeth, Wherefore as Trajan Civilly honest, Nero wicked are equal in the Right of Government, so Pious Constantine and Im­pious Nero, are equal in the right of judging, in aptitude and skill unequal. The Canons therefore of Forty, enjoyning the Explanation or Interpre­tation of the Regal Power there inserted to be one Sunday in every Quarter of the Year read by the Clergy to their Flocks, did well provide for the cau­tioning them as against the setting up any independent Coactive Power either Papal or Popular, so against Fears and Iealousies relating to their Properties in their Goods and Estates: and by that Explanation they shew that Christ came not to Undermine or Disturb, but to Confirm the Ci­vil Government of Pagan Princes, and that in the first times of Christ's Church, Christians were ready to submit their very Lives to the very Laws and Commands of those Princes.


But doth that Explanation of the Regal Power assert any thing in De­fence of the Dispensative part of it?


You see how without wyre-drawing any Consequences, the very first Paragraph of the Explanation doth both strengthen the foundation of the assertory part of your Oath, we have been so long discussing, and strike out new lights in the Fabrick of the Oath. You see it tells you downright, that A Supreme Power is given to the Order of Kings by God himself in the Scriptures, which is that Kings should rule and Command in their several Dominions, all Persons of what rank or estate soever, &c.

And the Explanation doth effectually enough provide by the second Pa­ragraph that Kings should take care that none in their Dominions but the stubborn and evil doers may be restrain'd with the Temporal Sword: for it saith, The Care of God's▪ Church is so committed to Kings in the Scripture, that they are commended when the Church keeps the right way, and taxed when it runs amiss: and therefore her Govern­ment belongs in chief to Kings. For otherwise one man would be Com­mended for another's Care, and taxed but for another's Negligence, which is not God's way. And this is an Argument taken ab absurdo, and the strongest that can be used in Law, and not to be set aside but by the alledg­ing something as more absurd against it; and amounts to this, that it is absurd that Kings who are commended, when those who are not stubborn nor evil doers are not under any restraint by the Temporal Sword (for the Church runs not the right way, when that Sword is a terror to any but evil doers) and tax'd on the contrary being done, should not be judged to be authorized to exempt those from all restraint thereby. And when the People are not liable to blame for Kings erring in their Judgment about the Per­sons to be so exempted from restraint, nor to be commended or rewarded for their not erring therein; can any thing be more absurd, then for the [Page 79] independent Coactive Power of Kings it self to be restrain'd to the Punishing such as they shall judge Innocent?

But the two tenderest things in the World are Sovereign Power and Con­science, and both of them were made with a Godly Iealousie and tenderness to support one another; and that Tender-Conscienced Prince who confirm'd this Canon, did in it variously dispensare in lege, as I may properly say with Allusion to Suarez de Legibus, where in stead of using the Common Expres­sion of dispensing WITH Laws he so frequently mentions that of dispensing IN them, and thereby doth seem to take off somewhat of the harshness of Questions about Popes or Princes dispensing WITH Laws. For when Sove­reigns do dispensare in lege, they really distribute their Sovereign Power throughout the Body of their respective Laws for their Preservation, and as the heart doth dispense or distribute Blood in and throughout the Body­natural, and the Brain Animal Spirits throughout the genus nervosum all the Body over. And here the King having a tender regard to the firm and infirm Consciences of his People respectively, and to their various Capaci­ties of understanding, and he being as Zealous for all their keeping their Oaths of Supremacy and Allegiance, as any Prince could be for their taking them, doth in the beginning of the Canon, let such as you know (who have been brought up to Study, and who have a tenacious Memory, and could remember more interpretations of the Oath then I have recounted to you if they had been given by our Princes) that whereas sundry Laws, Ordi­nances and Constitutions have been formerly made for the acknowledg­ment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King's most Excellent Majesty over the State Ecclesiastical and Civil, &c he doth enjoyn them all to be care­fully observ'd by all such Persons whom they concern upon the Penalties in the said Laws express.

Here then the Acts of Parliament before-mention'd, and the Oaths, and Articles, and Canons, and Authentick interpretations appear to look you in the face, and the Articles particularly do so to the Clergy as having sub­scribed them. But that Pious Prince as their Sovereign Pastor, being desi­rous that his Clergy should gently allure the Layety with Line upon Line, and Precept upon Precept to keep their Faith to God, and Loyalty to himself, rather then by Interpretation upon Interpretation of their Oaths, would not in this Canon have them frighted with the sight of the Oaths themselves, and which are there not named: and all Archbishops, Bishops, and inferior Priests are moreover by the Canon required to Preach, Teach, and Ex­hort their people to obey, honour, and serve their King, and that they presume not to speak of his Majesty's Power any other way then in this Canon is exoress'd; but which Canon gives them a very fair licence to speak to their People of and for the King's Power of disabling and of rehabi­litating his Subjects. For it disables the publick Ab [...]ttors of any Position contrary to the Explications of the Regal Power therein, by Excommuni­cating them till they repent, and for the first Offence suspends them two years from the Profits of their Benefices, and for the second deprives them of all their spiritual Promotions: and it was in the Canon before said, That if any Parson, Uicar, Curate or Preacher, shall neglect his Duty in Pub­lishing the said Explications, &c. he shall be suspended by his Ordina­ry, till such time as upon his Penitence he shall give sufficient assu­rance or Evidence of his amendment, and in case he be of any EX­EMPT Iurisdiction, he shall be censureable by His Majesty's Com­missioners for Causes Ecclesiastical. And the Canon makes any Offen­ders against it in the Universities, as being exempt Jurisdictions, there cen­sureable, [Page 80] or before His Majesty's Commissioners for Ecclesiastical Causes; and so you have the Canon likewise by securing the Rights of exempt Jurisdi­ctions asserting the Dispensative Power.

But if you will take Mr. Bagshaw's word in his first Argument in Parlia­ment concerning the Canons, he there tells you that that very Canon of the Convocation containing the Explanation of the Regal Power, did necessarily imply their declared sense of the Laws being dispens'd with: For saith he, in making Determinations concerning Royal Power, they have done against Law, and have medled with things of which they have no Conusance: for the Exposi­tion of them belongs to the Iudges of the Land, and they have no more right to expound them, then the Iudges have to expound Texts of Scripture.

And we know that our Laws have been so careful of preserving the Judges right of interpreting them, that they allow not the Bishops and their Officials Power to interpret any Acts of Parliament, tho made about Mat­ters of their Jurisdiction, and Matters merely Spiritual: as appears out of Hobart. 84. Spenloe's Case, and Coke 3. Inst. where he saith, that an Act of Parliament made about things merely Spiritual shall be construed by the Common Law [...] Judges.

But how far the disabling by the Power of His Majesty's Commissioners for Ecclesiastical Causes such who explain'd not the Regal Power according to that Canon might appear as an Instance of the Prerogative of Disabling and of occasional re-ennabling; Mr. Bagshaw's second Argument in effect ex­poseth it to Consideration, by mentioning that the last Letters Patents of the High Commission were Mich. 9. Car. in which are contain'd all things, wherein the Commissioners were to meddle, and that therefore the Punishing of any there on the account of this new Canon made not a year ago, could not be pursuant to those Letters Patents.

His first Argument likewise wherein he gives his Iudgment, that by Law that Convocation was dissolv'd by the Dissolution of the Parliament, may let us see how far they in making any Canon depended on the Dispensative Power of Prerogative.

But any one who hates Faction will find that that Author did needlesly inflame the minds of that Parliament of Forty against those Canons and par­ticularly with the foremention'd Exception against the first on the Account of the Explanation of the Regal Power having not been made by the Iudges, and where the Exception doth through the sides of the Convocation strike at the honour of that King by whom those Canons were Con­firm'd.

His Majesty in his memorable Speech at the Prorogation of the Parliament on the 20th of October 1628. occasionally said, I Command and all you that are here, to take notice of what I granted you in your Petition (i. e. the Petition of Right) but especially you my Lords the Iudges, for to you only under me belongs the interpretation of the Laws: for none of the Houses of Parliament joynt or separate, have any Power either to make or declare a Law without my Consent. Nor will any one wonder at the tenderness of any Crown'd heads in preserving their Right, as to the interpretation of their Laws, who hath consider'd that the usage of the ancient Romans in making their Civil Law to be among the things Sacred and Ceremonies of their Gods preserv'd in the Collegium Pontificum, and appropriating the interpretation of it to their Pontifices, did induce Augustus to be inaugurated Pontifex Maximus, and likewise all the Roman Emperors from Augustus to Gratian to assume that title: and that the Christian Emperors, tho as one saith, à fucris Romanorum & hoc Pontificis nomine abhorrebant, in suis tamen Elogiis & nummis passim se Pontifices maximos dici passi sunt, quod ad hodiernum diem r [...]dera. Romana inspicientibus satis consta [...]

[Page 81]Nor yet will any one find Cause to reflect on the memory of that our Prince for want of consulting his Iudges in the interpretation of his Laws in general: nor even of this his Ecclesiastical Law in particular about the Ex­planation of the Regal Power. For Heylin in his History of Archbishop Laud, saith, that so tender was His Majesty, that before he gave his Consent that the Canons of 1640. should be tender'd to the Clergy, to be subscribed, [...]e caus'd them to be publickly read in Councel, and before the Iudges there, and by all whom they were approved, &c. And if Mr. Bagshaw had consider'd what himself had said of the Iudges having no Right to Expound texts of Scripture, and how the Convocation in that Canon did introduce the Supreme Power given to Kings by God himself in the Scripture, and explain'd by Regal Power, Kings ruling and commanding in their several Dominions all Persons of what rank, or estate soever, and that they should restrain and pu­nish with the Temporal Sword all stubborn and evil doers; and likewise what was before mention'd in the Second Paragraph of the Explanation, viz. of the Care of God's Church committed to Kings in the Scripture, he would have found the Interpretation of the Regal Supremacy as built on the Scrip­tures by that Ca [...] (and approved too by the Judges of the Land) to have not been exorbitant.

The words in the 13th of the Romans, of the Higher Powers being the Or­dinance of God, and of bearing not the Sword in vain, and of being the Mi­nister of God, and a revenger to execute wrath on him that doth Evil, and of rendring therefore to all their dues, fear to whom fear, honour to whom honour; and the words in S. Peter of submitting our selves to every Ordinance of man for the Lord's sake, whether it be to the King as Supreme, or unto Go­vernors, as unto them that are sent by him for the Punishment of evil doers, and for the Praise of them that do well, and other passages in Scripture, and particularly in the Old Testament, were in the eye of the Convocation in their so explaining the Regal Power, and you may if you please have them now in your eye, while you are considering the Case before you, and see how far you are bound to submit to all Governors who shall be employ'd by the King in the executive Power of his Laws against evil doers, and for the praise of them that do well; and how you are not to disparage such Gover­nors who are so sent for such praise.

But it is not to be wonder'd at that the Iudges approved of the Contents of that Explanation of the Regal Supremacy, and particularly of the Power of punishing evil doers as inherent in the Crown, since the same hath been declared so by so many Acts of Parliament, and of which I shall name one to you that I have not yet referr'd to, viz. that of 1o Mariae, c. 1. Sess. 2. of the Second Parliament, of which the title is, The Regal Power is in the Queens Majesty as fully as it hath been in any her Progenitors, and where 'tis said that For as much as the Imperial Crown of this Realm with all Digni­ties, Honours, Prerogatives, Iurisdictions and Preheminences thereunto annex'd, united and belonging, by the Divine Providence of Almighty God is most lawfully and rightfully descended and come to the Queen's Highness that now is, &c. and invested in her Royal Person according to the Laws of this Realm, and by force and virtue of the same all Regal Power, Dignity, Honour, Authority, Preheminence doth appertain and of right ought to appertain and belong unto her Highness as to the Sovereign Supreme Governor and Queen of this Realm and the Dominions thereof in as full large and ample manner as it hath done heretofore to any other her most noble Progenitors Kings of this Realm, (the ample manner of Harry the 8th's Power is not therein ex­cepted) Nevertheless the most ancient Statutes of this Realm being made by Kings then reigning, do not only attribute and refer all Prero­gative, [Page 82] Preheminence, Power and Iurisdiction Royal unto the name of King, but also do give, assign and appoint the Correction and Punish­ment of all Offenders against the Regality and Dignity of the Crown, and the Laws of this Realm unto the King, &c.

And considering that a Popish Parliament of Queen Mary's did give this their august Declarative sense of the executive Power, of punishing all Of­fenders against the Regality and Dignity of the Crown (which is the great Offence taken at Popery) and the Laws of the Realm, as belonging to or inhe­rent in our Kings by virtue of their being Supreme Governors of the Realm, and that this Supreme Power was Committed to her and her Progenitors by the Divine Providence of Almighty God, shall your acknowledgments of such Supreme Power of your Prince be narrower then any of Papists?

You know how wary and careful our English Princes have always been that their Subjects might see them hold the reins of the Executive Power of the Law in their hands, and that none but the stubborn and evil doers need fear the being over-run by it.

And while I happen to think of the memorable Expression of a Loyal Lord in a Speech in a late Parliament of the unreasonableness of any ones suffering merely by the word Proditoriè being put into the charge of a thing that was not in its self Evil, and as if it were said that such an one did traiterously pass over the Thames in a Boat: I likewise think of the reasona­bleness of our Laws in providing for the common Safety by the Prince be­ing allow'd to hold the Sail of the Executive Power in his own hands, and which otherwise if ty'd fast about the Boat might cause it upon any sudden gust of wind to be overset.

You know therefore how King Iames the First in his Apology for the Oath of Allegiance, in Answer to the Pope's first Breve, thought himself obliged in justice for the maintenance of that Executive Power of the Crown to say as to the Pope's expressing his sorrow for that Persecution which the Catholicks sustain for the Faiths sake, wherein beside the main untruth whereby I am so injuriously used (as if he had thought it a personal injury to himself that any one in his Realm should be persecuted for Religion) I must ever avow and maintain as the truth is, according to mine own knowledge, that the late QUEEN of famous Memory never PUNISH'D any Papist for Religion. He doth not say, her Laws, and Ministers, but SHE never punish'd, &c. He well knew that if Papists had been Punish'd for their Religion in her Reign by Iudges, and Iuries, and Sheriffs, that it was she had punish'd them. And accordingly he in his Premonition to Christian Monarchs doth more regio, and with a style of Majesty relating to his Executive Power, thus tell them, viz. And yet so far hath both my Heart and Government been from any bitterness, as almost never one of those sharp Additions to former Laws hath ever yet been put in execution.

Well, Sir, In fine I leave it to you to consider on the whole matter how far the Contents of that Canon, and particularly what is declared therein about the care of God's Church being so committed to Kings in the Scripture, that they are commended when the Church keeps the right way, and blamed when it runs amiss, and therefore her Government belongs in chief to Kings, &c. do shew that Kings not only may, but ought out of a regard to their own Souls to provide that where the safety of their Subjects Souls is concern'd, their Dispensative Power by the interpretation of their Laws, and the relaxation of their Rigour in particular Cases may be exerted.

I doubt not but you have observ'd many more Cases wherein the Royal Martyr to prevent imminent peril of Soul was put to it to exert such his Power.

[Page 83]

I remember not to have read of more.


No? If you had read the 39 Articles Printed in the Edition that I have done, with his Declaration prefix'd thereunto, you would find that there being a high ferment about the Arminian Controversie in the Church of England, and the Arminian and Anti-Arminian Divines (who both had subscribed the Articles) appropriating the sense of them to both their Per­swasions, and too many drawing then the sense of them too much aside, and all of them professing themselves bound in Conscience by the Laws that re­quired their Subscription to the Articles, and that their Subscription to them, was to be taken in the Imposers sense, and that as to the Ar­ticle of the King's being Supreme Governor of the Church of England, it being supposed (as the words in the Declaration are) Some differences might arise concerning the External Polity, Injunctions, Canons, or other Constitutions thereto belonging; His Majesty by his Declaration again ratifying the Arti­cles, and particularly publishing that he was Supreme Governor of the Church of England, did notify his Pleasure, that as to any such Differences arising as aforesaid, the Clergy in their Convocation should order and set­tle them, he approving their Ordinances, &c. and to the end they might not trouble themselves or the Church by putting their own interpretations on the Articles, he Requires their taking the Articles in the Literal and Grammatical sense, and notifies that literal sense as restrain'd to the way of the general Expressions in the Articles, and such as the Divines of the seve­ral Perswasions took as making for them: so that now by His Majesty's thus interpreting that sense, they might warrantably continue so to do. And according to what hath been said of Manna, that it was that to every man's taste wherewith it was pleas'd most, mens sense of the Articles might be so too, by means of the declared Complaisance of His Majesty therewith.


One would then the less wonder at the Complaisance of the Clergy with that King's Power of Dispensing in his Laws by Interpreting or De­claring.


I could tell you of another passage in his Reign that will shew you how our Bishops made use of that Power as their Sheat Anchor to preserve the Hierarchy in the Storms it met with: and how then the Bishops issuing out the Processes of their Ecclesiastical Courts in their own Names, was by the Artifice of the Faction improved as an occasion of making a very great ferment in Church and State, and such a one as nothing but the Royal Power of Interpretation, or of declaring the Law, could settle.

And therefore Archbishop Laud in his Epistle to the King before his fa­mous Star-Chamber Speech, did in the Name of the Church of England then think himself obliged to apply to the King in a most pathetical and solemn manner to exert that great Power in that Conjuncture: viz. I do humbly in the Churches name desire of your Majesty, that it may be resolv'd by all the Reverend Iudges of England, and then Publish'd by your Majesty, that our keeping Courts and issuing Process in our own Names, and the like Exceptions formerly taken and now renew'd, are not against the Laws of the Realm (as 'tis most certain they are not) that so the Church Governors may go on cheer­fully in their Duty, and the Peoples minds be quieted by this assurance, that neither the Law, nor their liberty as Subjects is infringed thereby.

The many Pamphleteers of the Faction who attacqued the Hierarchy, [...]eproached them with the Non-observance of Humane Laws, and charged their Proceedings with Illegality, because by the Statute of 1o E. 6. c. 2. that required Processes Ecclesiastical to be in the King's name, it was de­clar'd, That the Bishops sending out their Process in their own Names was con­trary [Page 84] to the Form and Order of the Summons and Process of the Common-Law used in this Realm. And therefore as Heylin tells us in the Life of Arch­bishop Laud, p. 321. in A. 1637. the King accordingly 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 the Iudges Resolutions were therein notify'd to that purpose. And upon all mo­tions afterward for Prohibitions to the Ecclesiastical Court upon the pretence of their Processes not issuing out in the King's Name according to that Sta­tute of E. the 6th, the currant Law hath still been in Westminster-Hall for keeping up the sense of His Majesty declared in his Proclamation as to that Point.

According to the manner then of praising the Bridge we go over; the Church of England having in Queen Elizabeth's time been preserv'd by the Regal Power of interpreting express'd in her Admonition, and by the like Power in the time of King Charles the First, and the salus animae having been at stake as to the Oath in her time, and as to the avowed Principle of the Church of England about Humane Laws binding the Conscience in his time; the use of that Dispensative Power being like a Bridge that kept them from falling into the Pit of Perdition, deserv'd their Praise.

That eminent Divine Mr. Iohn Ley in his Learn'd Book call'd Defensive Doubts and Reasons for refusal of the Oath imposed by the Sixth Canon of the late Synod, (i. e. that in the year 1640.) saith there, p. 99. and 100, &c. There are some of our Brethren, who (in good will to themselves and us) have un­dertaken to expound the Oath so as that they and we without scruple may take it. And we take kindly their good intention, and in good will to them again request them to consider, that a Private Interpretation of a Publick Act can give no satisfaction unless it be either expresly or virtually allow'd by the highest Authority that doth impose it: and then it is made Publick, &c. But the Authority of Interpretation of any doubt in such a Publick Act, be­longs properly not to private but publick Persons, &c. For private Men tho Learn'd, if they take upon them the Interpretation of publick Dictates, may be more like to light on mutual Contradictions of each other, then on the true and proper Construction of the Text they interpret. So did Vega and Soto, Soto and Catherinus, who wrote against each other contrary Comments on the Council of Trent. In which respect it was a wise advice given to the Pope by the Bishop of Bestice, viz. to appoint a Congregation for the expounding of the Councel: and well follow'd by him when he forbade all sorts of Persons, Clerks or Laicks (being private Men) to make any Commentaries, Glosses, Annota­tions, or any Interpretation whatsoever on the Decrees of that Councel. Dr. Burgesse indeed made an Interpretation of his own Subscription, but there had been no validity in it (as we conceive) unless it had been allow'd by the Superior Powers. And so it was: for (as he saith). It was accep­ted by King James: and the Archbishop of Canterbury affirm'd it to be the true sense and meaning of the Church of England. He refers there to Dr. Bur­gesse in his Answer to a much applauded Pamphlet, Praefat. p. 26.


Your mentioning that of Dr. Burgesse his Interpretation of his Sub­scription minds me of what I have read at the end of his Book call'd No Sa­crilege nor Sin to alienate or purchase Cathedral Lands, viz. in his Postscript to Dr. Pearson, and his No Necessity of Reformation of the Publick Doctrine of the Church of England, Printed A. 1660. where he saith, As touching the Regal Supremacy, we own and will assert it as far as you do or dare. Only we had reason to take notice of the improper Expression in the 37th Article that the Queen's Majesty hath the Supreme Power. For if the Declaration [Page 85] father'd on the late King, and prefix'd to the Articles, had so much Power with his Printer, that he durst not alter the word Queen into King even in the year 1642, and those Articles must be read Verbatim without Alteration or Explanation, then we say again there is a Necessity of Reforming that Ar­ticle in the expression of it: and not to talk at random what was indeed the meaning, unless we may have leave when we read it (Regiâ declaratione non-obstante) to declare the sense which the Declaration alloweth us not to do.

But the truth is, that exception of the Doctor to the Articles may well pass for a Scruple, or rather a Cavil: and at this rate we should be put to it to say, O King interpret for ever.


You say right. Dr. Pierson in that Judicious Book of his, call'd No Necessity of Reforming the Doctrine of the Church of England, well observes that the 37th Article hath express reference to the Queen's Injunctions set forth in the year 1559. and those Injunctions take particular care, that no other Duty, Allegiance, or Bond should be required to the Queen, then was acknowledged to be due to the most noble Kings of famous Memory, King Henry the 8th her Majesty's Father, or King Edward the 6th, her Majesty's Brother. The words of the Article declare that the Doctrine contained in it, concerneth all the Kings as Kings. The title in General is of the Civil Magistrates, and the words run thus., where we attribute to the Queen's Majesty the chief Government we give not to our Princes, &c. shewing that what they gave to▪ her, they gave to all the Kings of England. Which will appear more plainly out of the first Latine Copy Printed in the time of Queen Eliz. in the year 1563. read and approved by the Queen, the words where [...]f are these, Cum Regiae Majestati summam gubernationem tribuimus, quibus titulis intelligimus animos quorundam Calumnia­torum offendi, non damus Regibus nostris aut verbi Dei aut Sacra­mentorum administrationem, &c. Being therefore the Article expresly mentioneth and concerneth the Kings of England, as they are the Kings of England, the mention of the Queen's Majesty in the Article can make the Doctrine no more doubtful then it doth our Allegiance in that Oath which was made 1o Eliz. where the Heirs and Successors of the Queen are to appoint who shall accept the Oath, the words of which are that the Queen's Highness is the only Supreme Governor of this Realm. But I hope the Heirs and Successors of Queen Elizabeth did never appoint that Oath to be taken in the Name of the Queen's Highness, but in their own.

It may be supposed that some such like Cavilling or Scrupling humour possess'd the fancies of some in the beginning of the Reign of King Iames the First: and that some occasion was thereby given to that Prince in those his Canons, expresly therein maintaining the 39 Articles, and the Subscription thereunto, and particularly in the 36th Canon there to enjoyn a Subscription to three Articles in such manner and sort as is there appointed, and of which the first is, That the King's Majesty under God is the only Supreme Governor of this Realm, and of all other his Highness Do­minions, &c. and that no foreign Prince, Person, Prelate, HAUE or OUGHT to have any Iurisdiction, Power, Superiority, Prehemi­nence, or Authority Ecclesiastical or Spiritual, &c. and in which the words have or OUGHT to have, might possibly be inserted out of a Royal Complaisance with the Desires of some Scruplers in whose behalf the Fa­mous Dr. Rainolds moved the King at the Hampton-Court Conference that to the Position in the 37th Article, viz. The Bishop of Rome hath no Iurisdiction in this Realm of England, might be added nor OUGHT to have: but which motion the King then rejected as a thing superfluous, and saying, Habemus quod jure habemus.

[Page 86]You may find an Account of this two [...]old Subscription in Coke 4. Inst. c. 74. and where he saith, Subscription required by the Clergy is twofold: One by force both of an Act of Parliament CONFIRMING and Establishing the 39 Articles of Religion agreed upon at a Convocation of the Church of England, and ratify'd by Queen Eliz. (13. Eliz. c. 12.) Another by Ca­nens made at a Convocation of the Church of England, and ratify'd by King James.


I had thought you told me that the 39 Articles owed no Confirma­tion nor Authority to that Act of the 13th of Eliz.


I did tell you so: and do think that when my Lord Coke used the word Confirming, he spake cum vulgo, or as the word is taken minus propriè and as it is taken in declarative Acts of Parliament sometime to mean declared, and as I and others may in Discourse sometimes use the word. But (speaking properly) to confirm being firmum facere, i. e. what was not so before, you are not to think that the Parliament in 13o Eliz. did so. They Enacted what was by the Queen before authorized, and as the words there are about the Articles, viz. Put forth by the Queen's Authority. And you may too for this purpose Consult the style of the Act 23o Eliz. c. 1. Entituled, An Act for retaining the Queen's Subjects in their due Obedience, and where 'tis made Treason for any to withdraw any Subjects from their Na­tural Obedience to her Majesty, or to withdraw them for that intent from the Religion now by her Highness Authority establish [...]d within her Do­minions.

Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign, pursuant to the Act of 1o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction; the Act of Parliament 35o Eliz. c. 8. entituled, Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good: and Archbishops, Bishops and Deans made by the Queen shall be adjudged lawful; begins with acknowledging that the former were justly deprived, and it is therefore Declared and Enacted by Authority of this Parliament, that all and every Deprivation, &c. and all and every Sentence of Deprivation, &c. had, pronounced and given, &c. shall be adjudged, deem'd, and taken good and sufficient in Law, &c. and as to the latter, viz. That all such Archbishops, Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty, &c. shall be taken and adjudged to be lawful, &c. Th [...]y confirmed not what the Queen did in disabling the former, and enabling the latter, but only declared and enacted the validity of what the Queen had done. And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling.

And here too (by the way) I am to tell you, that you have another judgment of Parliament suitable to that in 8o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty, &c. any am­biguity or question in that behalf heretofore made to the contrary not­withstanding, and which QUESTION before made in the Case, I have be­fore shew'd to be disability.


But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of, represented as a Gravamen by some.


I have so: and the last Book I read that so represents it is, the An­swer to Dr. Stillingfleet's Sermon by some Non-Conformists, &c. Printed A. 1680. and where in p. 29. they thus express their desires, viz. That all New devised Oaths, Subscriptions and Declarations, together with the Cano­nical [Page 87] Oath, and the Subscription in the Canons be suspended for the time to come. If that be too much, we shall consent our selves with a modester mo­tion, that whatsoever these Declarations be that are required to be made, subscribed, or sworn, they may be imposed only as to the matter and end, leaving the takers but free to the use of their own Expressions. And this ex­pedient we gather from the Lord Coke, who hath providently (as it were) against such a Season laid in this Observation, The form of the Subscription set down in the Canons ratify'd by King Iames, was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then, in reference to the particulars therein contain'd, what binders why they might not have the same restored in reference also to others?

It was the second Article enjoyn'd by that Canon to be subscribed, viz. That the Book of Common-Prayer, &c. containeth in it nothing contrary to the Word of God, and that it may lawfully be used, &c. at which they took so much offence, and to which the Act of Parliament required not their Subscription.


I perceive then my Lord Coke doth not reflect on the form of Sub­scription, as enjoyn'd by the 36th Canon of King Iames, and by his Regal Authority out of Parliament as illegal, notwithstanding what had been ena­cted in the 13th of Queen Elizabeth.


He doth not. And he there further faith, By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto: but the Delinquent a­gainst the Canon of King James is to be proceeded withall by the Censures of the Church. And I heard Wray Chief Iustice in the King's Bench, Pasch. 23. El. report, That where one Smith subscribed to the said 39 Articles of Religion with this addition, so far forth as the same were agreeable to the Word o [...] God, that it was resolv'd by him and a [...]l the Iudges of England, that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription, &c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice, he is sworn to Ca­nonical Obedience to his Di [...]cesan.

But as to his saying that the Delinquent against this Canon is to be procee­ded withall by the Censures of the Church; I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it, and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain, Admit or License any one, except he first have subscribed in manner and form there appointed: and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure.

Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament, and did like­wise out of Parliament make incapacity to be the Punishment of refusing such new Subscription.

And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England, as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but (as I may say) virtually and tacitly by all our Kings and Parliaments ever since, who have acquiesced in the same. But what if I should tell you that the Authority of the King in thus making that Canon about Subscription, hath been since expresly approved in Par­liament?


I should be most ready to hear it.

[Page 88]

You may therefore please to consult the Act for Uniformity 16o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops, &c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops, &c. set forth in the time of Edward the 6th, as containing all things necessary to such Con­secration and Ordering, &c. It is Enacted, &c. that all Subscriptions here­after to be had or made to the said Articles by any Deacon, Priest, &c. or other person whatsoever, who by this Act or any OTHER LAW now in force is required to subscribe unto the said Articles shall be construed and taken to extend and shall be applyed (for and touching the said 36th Article) to the Book containing the form and manner of making, or­daining, and consecrating of Bishops, Priests, &c. in this Act mentioned in such sort and manner as the same did heretofore extend to the Book set forth in the time of King Edward the 6th mention'd in the said 36th Ar­ticle, any thing in the said Article, or in any Statute, Act, or Canon heretofore had or made to the Contrary hereof in any wise notwith­standing.

It is clear that the Parliament had then their Eye on the Act of 13. Eliz. and on that Canon of King Iames, and which you may take as referr'd to by the words, or any other Law now in force (for so they then knew it to be, and as it still is, tho with the interpretation extended by the Act to it) and afterward by the word Canon.

But one may guess that by the Authority of some of the Lords the Bi­shops there was before the making of this Canon of King Iames, and after the Act of 13. Eliz. in her Reign, some Subscription under disabling Penal­ties required of Ministers beyond what that Statute required, by what the Author of Certain Considerations tending to promote Peace mentions, in p. 4. viz. That in the 30th year of the Reign of Queen Elizabeth, the House of Commons presented to the Lords Spiritual and Temporal a Petition con­taining divers particulars, for the redress whereof they desire, that no Oath or Subscription might be tender'd to any at their entrance into the Ministry, but such as is expresly prescribed by the Statutes of the Realm, except the Oath against Corrupt entring, that they may not be troubled for the omis­sion of some Rites, or Portions prescribed in the Book of Common Prayer: that such as had been suspended for no other Offence, but only for not subscri­bing might be restored.


It seems those Bishops then did as your Expression was, Dispensare in lege, and were (as I may say) Non-conformists to it, by going beyond it. For they were obliged sapere ad Regulam; and all Conformity is respectu regulae, and he who doth over-shoot, or who over-does what is enjoyn'd, is a Non-conformist.


You here put me in mind how some of our Bishops and Clergy have been thus Non-conformists in over-shooting their mark, at the same time that they have with undistinguishing severity executed the rigour of the Laws against all who did shoot short. The Royal Martyr in his Declara­tion to all his Loving Subjects, Publish'd with the Advice of his Privy Councel, A. 1641. refers to some Ceremonies in our Church which have been used without any legal Warrant or Injunction, and which already are, or speedily may be abolish'd.


But I a little wonder that a House of Commons should Petition for the Dispensing with some legal Rites, and required both by Injunctions and Canons, and by Acts of Parliament.


I do not wonder at it at all. For Conjunctures having happen'd when some Non-conformists having been tender of the Peace of the Government, [Page 89] you need not wonder at any tenderness in it for them. For as in the Con­juncture of the Resteration of King Charles the Second, very many of the Presbyterians and of other Sects then shewing their Loyalty (the Author I lately cited taking notice thus of the Declaration, A. 1660. viz. in which his Majesty saith Our present Consideration and work is to gratifie the private Co­sciences of those who are grieved with some Ceremonies, by indulging to and dis­pensing with the omitting of those Ceremonies. A Member of the House of Commons in an Epistle to His Majesty useth these words, viz. which Indulgent Declaration so ravished the hearts of all your Loving Subjects, that your whole House of Commons, their Representatives then assembled in Parlia­ment, immediately after the Publication, October 8th. 1660, repair'd in a Body to White-hall, and there by their Speaker's Oration in the Banquetting­House, express'd their extraordinary great Ioy, and presented their general Thanks to your Majesty for this your Majesty's most gracious Declaration and Dispensation with their Consciences in Matters not being of the substance or essence of Religion, which gave abundant satisfaction to all peaceable sob r­minded Men, and such as are truly Religious, in which return of their Thanks they were all unanimous, Nemine Contradicente, then Ordering a Bill in Pursuance of your Majesty's Declaration: Note, that this was that House of Commons, which together with the House of Lords brought His Majesty to the Throne) so long before, namely in the first year of King Charles the First, and A. 1625. both Houses presented a Petition to the King, wherein they desire that His Majesty would please to advise the Bishops by fatherly en­treaty and tender us [...]ge to reduce to the peaceable and orderly Service of the Church such able Ministers as have been formerly SILENCED, &c. and which is in effect, all one, such able Ministers as have been formerly disabled.


I am highly pleas'd with your further bringing any thing to me like Iudgment of Parliament that may strengthen the Regal Power of interpre­ting, or of dispensing with disability. We have discours'd of the Subject a pretty while together at this Meeting, and I must acknowledge you have entertain'd me with an account of many Statutes that have propp'd up the Regal Power of dispensing with disability: and that too (tho you observ'd it not to me) not only in their Preambles, but in their enacting parts, the which I account more momentous. Nor can I forbear observing it to you, that in the late Printed Books of some who asserted this dispensative Power, nothing like Iudgment of Parliament hath been cited in the case for it, but that out of Rot. Parl. 1. H. 5. 11. 22. out of Rolle Tit. Prerogative le Roy, fol. 180. viz. The Commons prayed that the Statutes for voiding of Aliens out of the Kingdom might be executed, to which the Ki [...]g agreed saving his Prerogative, that he might dispense with such as he pleas'd. And upon this the Commons answer'd, that their intention was no other, nor ever should be, by the help of God.

But this was only the judgment of a House of Commons; and that is short of the Authority of a House of Lords concurring with them, tho but in a Petitionary manner, that the Regal Dispensative Power might be exerted: and which latter is far short of the Authority of an Act of Parliament. And among the many Parliamentary Recognitions of the Dispensative Power you have mention [...]d to me, that which you told me at our first meeting of the Act of Uniformity 16o Car. 2. leaving Aliens or Foreigners of the Reform'd Churches that were then allow'd or tolerated by the King's Maje­sty, or that should be allow'd by him, his Heirs and Successors, to be secu­red under the Wing of Prerogative from all the Penalties in that Act, was a greater President of a Parliament's deference to the Dispensative Power.

[Page 90]But here it falls in my way to ask you if the Parliament in that Act, in­terpreting and expounding the Sulscription to the 36th Article (as you be­fore mention'd) did not shew some want of tenderness to the Regal Power of interpreting?


Not in the least. The King thought fit in his Legislative Capacity, and with the Concurrence of the three Estates to issue forth such interpre­tation, to the end it might be perpetuated. But you will find that they were so tender of that branch of Prerogative, namely of the Regal Power of interpreting out of Parliament, that having referr'd to the King's Declara­tion of the 25th of October, 1660. (i. e. that concerning Ecclesiastical Af­fairs we spoke of before) and mention'd that according to that he had gran­ted his Commission to several Bishops and other Divines to review the Book of Common Prayer, and to prepare such Alterations and Addi­tions as they thought fit to offer, and that afterwards the Convocations of both the Provinces of Canterbury and York, being by His Majesty called, &c. His Majesty hath been pleas'd to Authorize the Presidents of the said Convocation, and other the Bishops and Clergy of the same to review the Book of Common Prayer, and the Book of the form and man­ner of the making and consecrating of Bishops, Priests, &c. and that they should make such Additions and Alterations in the said Books as to them should seem meet, and should present the same to His Majesty for his further Allowance or Confirmation, and then setting forth that the same was accordingly done, and that some alterations were inserted into those Books by the Convocations, and by them Presented to His Maje­sty, and all which His Majesty having consider'd hath fully approved, it then follows, that His Majesty hath recommended to this present Parlia­ment that the Books of Common Prayer, &c. with the Alterations and Additions which have been so made and presented to His Majesty by the said Convocations, be the Book which shall be appointed to be used, &c. in all Parish Churches and Chapels, &c. And it is upon the foundation of what His Majesty did as before-mention'd, that the following enacting Clauses with their Sanctions and Penalties are built.

And you may if you will take notice of a Proviso toward the end of the Act, being very tender of not hurting what King Iames by his Prerogative did in Uniting the Prebendship to the Professor of Law in Oxon for the time being, and whereby that King dispens'd with the incapacity of Lay-men, as to the enjoyment of such Prebendship: but the Act and the Proviso takes care to perpetuate the King's Professor's enjoying the same, and leaves the Prerogative at liberty to dispense with such disability in the Case.

In short, you see how tender that Parliament was of Prerogative, and tho they thought it not fit to give such loud Applauses to his late Majesty's Declaration of October the 25th, A. 1660. before-mention'd, wherein so much of the Dispensative Power was exerted, yet you find they refer to it with respect.


I have almost forgot the particulars of the Dispensative Power there­in exerted.


I shall tell you that the King having there mention'd (and what the Act takes notice of) his saying that he would appoint some Divines to review the Common Prayer Book, and to make such Alterations as shall be thought most necessary, &c. it then saith, Out Will and Pleasure is, that none be punish'd or troubled for not using it until it be review'd, and effectually reform'd. He there speaks several times of Dispensing with Ceremonies, that were by Law establish'd. It is there likewise said, Because some men otherwise Pious and Learned say, They cannot conform unto the Sub­scription [Page 91] required by the Canon, nor take the Oath of Canonical Obe­dience, we are Content, and it is Out Will and Pleasure (so they take the Oaths of Allegiance and Supremacy) that they shall receive ordina­tion, institution and induction, and shall be permitted to exercise their Function, and to enjoy the Profits of their Livings without the said Sub­scription or Oath of Canonical Obedience, &c.


I see here is King Iames the First's incapacitating Canon dispens'd with, and indeed suspended.


The Declaration goeth on with taking care that None be Iudged to forfeit his Presentation, or Benefice, or be deprived of it upon the Sta­tute of the 13th of Elizabeth, c. 12. so he read and declare his Assent to all the Articles of Religion, which only contain the Confession of the true Christian Faith, and the Doctrine of the Sacraments comprised in the Book of Articles in the said Statute mentioned. And this Declaration had before express'd His Majesty's mindfulness of his Declaration from Bre­dagh, and his saying, We publish'd in our Declaration from Bredagh, a Liberty to tender Consciences, and that no man should be disquieted or call'd in Question for Differences of Opinion in Matters of Religion, which do not disturb the Peace of the Kingdom, and that we shall be ready to consent to such an Act of Parliament as upon mature deliberation shall be offer'd us for the full granting that Indulgence. Here was a Liberty of Conscience granted and publish'd, and Heterodoxy about the very Arti­cles of Religion tolerated, and a throwing off of Penal Laws, and for which Declaration I should have told you, that Baker's History, p. 703. mentions, that the House of Lords order'd Thanks to be given to the Messenger who brought that gracious Declaration.


And yet you say the Declaration October 25. 1660 thus dispensing with disability incurr'd by the Canon, and the 13th of Eliz▪ and by Queen Eli­zabeth's Act of Uniformity, was both approved and applauded by the former Parliament. I have not heard of the like in the kind of it.


No doubt but the Author there referr'd to the Declaration of Octob. 25. A. 1660. for which the House of Commons so express'd their thanks: how­ever by the supposed carelessness of the Printer, the Publication is said to be October 8th. 1660. For the words by him cited as said by his Majesty, viz. Our present Consideration and work is to gratify, &c. are in that Decla­ration, p. 15. and 16.

But if it were not for cloying you with other like Instances, I could tell you of the like in the beginning of the Reign of King Iames the First.


I pray speak not of cloying. My Patience may be soon surfeited with two or three such things as some call Presidents. But this thing call'd Iudgment of Parliament carries with it so much weight as well as Vene­ration, that you can no way more oblige me then by going on to entertain me with Instances of that kind.


Why, then I can tell you if you will at any time turn to your Col­lection of Proclamations in the time of King Iames the First, you will find that in his Proclamation of March the 5th, the first year of his Reign, he in­timates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer, and for that end gave forth his Commission under the Great Seal of England, ac­cording to the Form which the Laws of this Realm in like Case pre­scribed to be used to make the said Explanation, and to cause the whole Book of Common Prayer with the same Explanation to be newly Prin­ted, which being done and establish'd, anew after so serious a Delibera­tion, [Page 92] &c. we have thought it necessary to make known by Proclamation our authorizing of the same, and to require and enjoyn all men, as well Ecclesiastical as Temporal to Conform themselves to it, as the only publick Form of serving God, establish'd and allow'd to be in this Realm. And the rather for that all the Learned Men who were there present, as well of the Bishops as others, promised their Conformity in the practice of it, only making sute to us that some few might be born with for a time. Wherefore we require all Archbishops, Bishops, and all other publick Ministers, as well Ecclesiastical as Civil, to do their Duties in causing the same to be obey'd, and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer.

You see there that all the Bishops and the great Parade of the literati present at that famous Conference, did implore the King for the exercise of his Dispensative Power for a while to some few.

But what is more considerable is, that the King here doth make a gene­ral relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things; and instead of inserting an express Clause of discharging from the Penalties of that Act, all that use the Common Prayer Book with the King's Alterations or Explanations, as Queen Elizabeth's Admonition did in rela­tion to those who took the Oath of Supremacy in the sense of her Interpre­tation, (a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law) he enjoyns the uniform usage of the Book of Common Prayer, as by him interpreted or ex­plain'd (the title of the Proclamation being A Proclamation for the autho­rizing an Uniformity of the Book of Common Prayer to be used throughout the Realm) under the disabling Punishments of Queen Elizabeth's Act of Uni­formity; the Bishops all this while being ministerial to the King in his Power of thus interpreting, and explaining an Act of Parliament, and the loosening of its Obligation both as to themselves and others.

I am to tell you, that in that Proclamation of March the fifth, the King refers to a Proclamation he had before Publish'd on the 24th of October then last past, wherein he gave the Puritan Divines an intimation of the Conference he intended to have: and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation, which (saith he) if there be Cause to make, is more in our hearts then theirs, &c. and afterwards saith, we are not ignorant that time may have brought in some. Corruptions, which may deserve a review and amendment, which if by the Assembly intended by us, we shall find to be so indeed, we will therein procéed according to the Laws and Customs of this Realm by Ad­vice of our Councel, or in our High Court of Parliament, or by Con­vocation of our Clergy, as we shall find reason to lead us: not doubting but that in such an orderly proceeding, we shall have the Prelates & others of our Clergy no less willing and far more able to afford us their Duty and Service, then any other whose zeal doth go so fast before their dis­cretion.

And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm, and how loyally his Bishops and Clergy ac­quiesced therein.


I remember I have read both these Proclamations: and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the Peo­ple, tho none in the Orthodox Clergy. But I should be glad to know whe­ther it made any fermentation in the Body of the People Representative, [Page 93] and what was the Result of it? Did the Parliament acquiesce in what the King had done as aforesaid? For if so; they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supre­macy did in discharging the disabling Penalties in her first Act of Parliament, and in relaxing by her interpretation, the vinculum for its observance in that sense that many had before put on it.


King Iames his Parliament did in effect, the very self-same thing. And I shall give you the account of it out of his Proclamation of the 16th of Iuly, A. 1604. in the Second year of his Reign: for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it, and his hoping that when the same should be made known all reaso­nable Men would have rested satisfy'd with that which had been done, and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made, His Majesty's following words are, Notwithstanding at the late Assembly of our Parliament, there wanted not many who renew'd with no little earnestness the Questions before determin'd, and many more as well about the Book of Common Prayer, as other Matters of Church Government, and importuned us for our assent to many Alterations therein: but yet with such Success, as when they heard both our own Speeches made to them at sundry times, shew­ing the Reasons of our former Proceedings in those Matters, and like­wise had had Conference with some Bishops, and other Lords of the Up­per House about the same, they desisted from further Prosecution thereof, finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same, we had be­fore with the Advice of our Councel, had such Consideration as the pre­sent state of things would bear, and taken order how the same should be prosecuted by such means as might be used without any publick distur­bance or innovation.

And in how vigorous a State the Dispensative Power as to the Non­conformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Com­mons for the exercise of the same to the Non-conformists, in the 10th year of his Reign.

Moreover how by Tacit Dispensation he dispens'd with the Disabilities that Roman Catholick Physicians and Lawyers had incurr'd by his Acts of Parliament, I have told you. But what if I should now tell you how after­wards he did take care as it were unâ liturâ, to delete the Execution of [...]ll the Penal Laws, disabling ones, and others, against the Roman Catholicks; and that as to what he did therein, the most zealous Protestants among his Bishops, and the Lords Temporal and others of his Privy Council, did concur with him in so doing?


I think you would tell me of that which was very strange.


As in the Happy future State of England it was with an intent to detect the Degeneracy and Vanity of the Politick and Protestant-would-be's of the Age who pretended to Advance Religion by Excluding the next Heir, in p. 219. shewn that one of the general and publick Articles sent by King James the First to his Embassador in Spain,

in Order to the Match with the Infanta was, that the Children of this Marriage shall no way be compell'd or constrain'd in point of Conscience or Religion, wherefore there is no doubt that their title shall be prejudiced in case it should please God that they turn'd Catholicks, and that it was afterward sent as an additional Article offer'd from England, that the King of Great Britain and Prince of Wales should bind themselves by Oath for the Observance of the Articles, and that the Privy [Page 94] Council should sign the same under their Hands, and that accordingly the Articles were sign'd by Archbishop Abbot, John Bishop of Lincoln, Keeper of the Great Seal, Lionel Earl of Middlesex, Lord high Treasurer of Eng­land, Henry Viscount Mandevile, Lord President of the Council, Edward Earl of Worcester, Lord Privy Seal, Lewis Duke of Richmond and Lennox Lord high Steward of the Houshold, James Marquess of Hamilton, James Earl of Carlisle, Lancelot Bishop of Winchester, Oliver Viscount Grandison, Arthur Baron Chichester of Belfast, Lord Treasurer of Ireland, Sir Thomas Edmonds Knight, Treasurer of the Houshold, Sir John Suckling, Comptrol­ler of the Houshold, Sir George Calvert, and Sir Edward Conway, Prin­cipal Secretaries of State, Sir Richard Weston, Chancellor of the Exchequer, Sir Julius Caesar, Mr. of the Rolls; and for the truth of which Facts, refe­rence is there made to Mr. Prynne's Introduction to the Archbishop of Can­terbury's Trial, p. 43: so you may there read it in p. 44. that some private Articles were agreed on, and probably were Sworn to by the same Persons that the other general ones were: and of which private ones, the first was in short, That none of the Penal Laws against Roman Catholicks should at any time hereafter be put in Execution.

But you may thus see it at large: viz. That particular Laws made against Roman Catholicks, under which other Subjects of our Realms are not compre­hended, and to whose Observation all generally are not obliged, as likewise general Laws, under which all are equally Comprised; if so be they are such as are repugnant to the Romish Religion, shall not at any time hereafter by any means or chance whatsoever directly or indirectly, be commanded to be put in Execution against the said Roman-Catholicks. And we will cause that our Councel shall take the same Oath, as far as it pertains to them, and belongs to the Execution which by the hands of them and their Ministers is to be exercised.

The 2d was, That no other Laws shall hereafter be made anew against the said Roman Catholicks; but that there shall be a perpetual Toleration of the Roman Catholick Religion within Private Houses throughout all our Realms and Dominions, which we will have to be understood, as well of our Kingdom of Scotland and Ireland, as in England, &c.

And the 4th was, That we will interpose our Authority, and will do as much as in us shall lie, that the Parliament shall approve, confirm and ratifie all and singular Articles in favour of the Roman-Catholicks, capitulated be­tween the most renowned Kings, by reason of this Marriage; and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks, &c.

And the Conclusion there is, viz. That we will interpose our Authority, and will do as much as in us shall lie, that the Parliament shall approve, confirm and ratifie all and singular Articles in favour of the Roman-Catho­licks, capitulated between the most renowned Kings, by reason of this Mar­riage; and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks, to whose observance also: the rest of our Subjects and Vassals are not obliged; as likewise the general Laws under which all are equally comprehended, to wit, [...]s to the Roman-Catholicks, if they be such as is aforesaid, which are repugnant to the Roman-Catholick Religion: and that hereafter we will not consent, that the said Parliament should ever at any time Enact or Write any other new Laws against Roman-Catholicks. We accounting all and singular the preceding Articles, ratified and accepted, out of certain Knowledge, as far as they concern us, our Heirs or Successors, approve, ratifie, applaud, and promise, bon [...] fide, and in the word of a King by these Presents inviolably, firmly, well and faithfully to keep, [Page 95] observe, and fulfill the same, and to cause them to be kept, observed and ful­filled without any Exception or Contradiction, and do confirm the same by Oath upon the holy Evangelists, notwithstanding any Opinions, Sentences or Laws whatsoever to the contrary: In the presence of the most Illustrious Don John de Mendoza, Marquess of Inojosa, and Don Charles Coloma. Extraordinary Ambassadors of the Catholick King, of George Calvert Knight, one of our Chief Secretaries, of Edward Conway Knight another of our Chief Secretaries, of Francis Cottington Baronet, of the Privy Councel to our Son the Prince, of Francis de Corondelet, Apostolical (or the Pope's) Prothono­tary, and Arch-Deacon of Cambray. Dated at our Palace at Westminster, the 20 day of July, 1623. in the English style.

Jacobus, Rex.
A Compared and true Copy. George Calvert, Chief Secretary.

The Form of the Oath which the Lords of the Councel took to the former Articles is this which followeth, (found among the Lord Cottington's Papers.)

Formula Juramenti à Consiliariis Praestandi.

Ego N. Iuro me debitè plenéque observaturum, quantum ad me spectat, omnes & singulos Articulos, qui in tractatu Matrimonii, inter Serenissimum Carolum, Walliae Principem, & Serenissimam Dominam Do [...]nam Mariam Hispaniarum I [...]fantem, continentur. IURO ETIAM, Quod neque per me, nec per Ministrum aliquem inferiorem mihi inservientem, legem ullam contra quemcunque Catholicum Romanum conscriptum executioni mandabo, aut man­dari faciam, Poenamve ullam ab earum aliqua irrogatam exigam. Sed in omnibus quae ad me pertinent, Ordines à Majestate sua ex ea parte consti­tutos fideliter observabo.

Thus far Mr. Prynne; who verifies the Facts above-mention'd, not only from my Lord Cottington's Papers, but from the Mercure Francois, Tom. 9. A. 1624. p. 25, 26, 27. and on which Author he in p. 47. bestows the Cha­racter of one of the truest Historians of this latter Age: and whom Mr. Prynne had before in p. 40. cited for the truth of the general Articles referring to Tom 9. p. 11. and 28. And I shall here observe to you, that what Mr. Prynne hath set down as aforesaid, to be the Form of the Oath took by the Lords of the Councel to the former Articles, doth appear to be referr'd by him to both sorts of Articles, viz. both the general and the private ones. For tho toward the end of the general Articles it appear'd only that the King and Prince were to be Sworn that all the Privy Councellors should sign those Ar­ticles under their hands, and that the King Subscribed those Articles, and was sworn to them in the presence of those Bishops and other Privy Coun­cellors before named; yet the first of the private Articles agreeing that the Councel should take the Oath as far as pertain'd to them, and belong'd to the Execution which by the hands of them and their Ministers is to be exercised, that the Penal Laws should not be executed against Roman-Catholicks, I ac­count it appears according to Mr. Prynne that the Privy Councellors were Sworn to both Articles together: and that by the words of IURO ETIAM, &c. the private Articles were referr'd to; and the which will ap­pear the more manifest, if you consider that the general Articles had not one word therein for the tolerating of more Papists then those of the In­fanta's Family, and such who particularly belong'd to her. Nor was there any thing more as to the Privy Councellors agreed to in the general Articles, then their signing them. And both the general and private Articles bearing [Page 96] the same Date, it may be the rather supposed that pursuant to the first private Article, containing the King's Covenant for the Privy Councel's being sworn to them, that the Bishops and the other Privy Councellors might then be sworn to them, as well as their having then particularly signed or subscribed the general Articles appears: for so Mr. Prynne's words are, p. 44. The King and the Embassadors went to the Councel-Chamber, where all the Lords of the Councel seal'd and subscribed the general Articles of the Marriage, &c.


But I account you are not ignorant how much it hath been observ'd that Mr. Prynne, who was so voluminous a Writer, did too much take his Quotations on trust; and that therefore what he had as out of the Mercure Francois might not be rightly cited.


Admitting that Mr. Prynne being so infinite in his Quotations might often erre that way, I shall tell you, that I engaging a Learned Man of the University of Oxford to consult Mr. Prynne's Quotations out of the Mercure (of which the Tomes are in the Bodleian Library) he return'd me word, that they exactly agreed with the Author in the places cited by Mr. Prynne.


But one would scarce think that Archbishop Abbot should swear to these private Articles; for there went about a Letter of his in that Conjun­cture, by the warm name of his Remonstrance to His Majesty against the Match, and the toleration of the Roman-Catholicks.


I grant that there did: and Mr. Prynne in p. 39. and 40. sets down the Letter; and he calls it A Remonstrance: and the Archbishop is there brought in, saying thus, viz. This Toleration which you endeavour to s [...]t up by your Proclamation, cannot be done without an Act of Parliament, &c. But Heylin in his History of the Presbyterians, represents this as a Sham-Letter, and put upon the Archbishop: and saith, that the Archbishop could not be so ill a Statesman (having been long a Privy Councellor) as not to know that he who sits at Helm, must steer his Course according to Wind and Weather, and that there was a great difference between such Personal Indulgences as the King had granted in the Case to his Popish Subjects, and any such Publick exercise of their Superstitions as the word Toleration doth import. And so he giveth Judgment, that Abbot was only the reputed Author of this Bastard Letter, and not the natural Parent of it.

In the various Editions of this Letter, I have observ'd no date to it: and it is in that Book of Mr. Prynne before his mention of the general or pri­vate Articles, and before the Match was resolv'd on by the King. And if notwithstanding that Letter, the Archbishop was afterward Sworn to the Articles, his altering his judgment on grounds of Reason, was both com­mendable, and exemplary: and worthy of that mutual Confidence between the King and him and the other Bishops in the Councel, and his Privy Councel in general; and which was such, that in a lawful Matter the King could stipulate for their Obedience in the first private Article as was before mention'd.


Your having shew'd me out of the Copy of the Publick Instruments found by Mr. Prynne among my Lord Cottington's Papers what concerns the Toleration, hath given me much satisfaction in the truth of that Fact. For otherwise what a late Book writ for The King's Right in dispensing with the Penal Laws directed me to in Rushworth of The Declaration touching the Pardons, Suspensions, and Dispensations of the Roman-Catholicks, sign'd by the Lord Conway and others, Aug. the 7th. A. 1623. would have left the Matter to me full of doubt and mystery.

[Page 97]But I see by those Copies of Articles found among the Papers of my Lord Cottington, the Toleration of Papists had been reverâ about a Fort­night before the date of that Paper sworn to by all the Privy Councellors of King Iames. And tho King Charles the First did fall as a Martyr for the Protestant Religion, and was a Confessor of it in Spain, as Archbishop Laud sets forth in his Star-Chamber Speech, and as likewise the Earl of Bristol shews in his Learned and Loyal Apology, Printed, A. 1657. (which if you have not read, is highly worth your most serious perusal; and where having spoke of the Papal Dispensation for the Marriage on the Articles for­merly agreed on in point of Religion, and of the Civil Letters that passed between that King, then Prince, and the Pope, he said that those Letters were Publish'd and Translated into several Languages (referring there, I sup­pose, to the Mercure Francois) which tho he could not say corruptly, yet strained as much as might be to his disadvantage, and that it is probable that the like Letters of Compliance m [...] have been procured in the Treaty of the Match with France, wherein the Pope's Dispensation was likewise held necessary) yet I shall tell you, that Mr. Prynne in p. 46, 47. after he had men­tion'd the Oath taken by the Privy Councellors, saith, His Majesty call'd an Assembly of Divines to Consult with, what he ought to do for the discharge of his Consc [...]ence in this regard, and their Resolution was first that the Prince of Wales should promise on [...]is Oath to perform the Conditions, and that the King his Father should do the like: Secondly, That the Promises of Marriage should be presently made, &c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experiment [...]lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd, &c. As to the first, the Prince of Wales took an Oath to His Majesty to observe the foresaid Condi­tions, and sign'd them with his Hand, and he likewise swore and sign'd this by way of Over-plus, to permit at all times, that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment, and that he would never directly nor indirectly permit any to speak to the Infanta against the same.

But I shall here en passant observe to you out of the general Articles, namely that in the 16th Article (notwithstanding my Lord Coke's Opi­nion before-mention'd, that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament) there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta, and care taken that no Clause or word therein shall contradict the Roman Religion, or Consciences of the Roman-Catholicks: and that by the 24th Article for the Security that every thing that was agreed to, should be fulfill'd, the King and Prince were to be bound by Oath, that all the Privy Councellors should sign the Agreement, And I need not tell you that their being sworn to the private Articles was a new Oath.


Was nothing of the King's mind about the Suspending ALL the Penal Laws, both the disabling ones and others against the Papists, notify'd to his Privy Councel before the year 1623?


Mr. Prynne there in p. 30. saith, that for the hastening the Pope's Dis­pensation for the Match, King James (as the French Mercure, Tom. 9. re­cords it, and as he had CREDIBLY been inform'd of from others) assembling his Privy Councel together, Febr. 25. 1622. made a long Oration to them (which he recites at large) the sum whereof was this, That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods, Bodies, Consciences during Queen Elizabeth's Reign, of which [Page 98] they hoped to be relieved in his, &c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects, and was resolv'd to relieve them, and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection, permit­ting them the Liberty and entire Exercise of their Religion, &c. without any Inquisition, Process, or Molestation from that day forward; and likewise will and ordain, that they shall be restored to all their Estates, Lands, Fees and Seignories, and re-establish'd in them: Commanding all his Magistrates, Iustices, and other Officers whatsoever in this behalf to hold their hands, and for what Cause soever it be, not to attempt hereafter to grieve or molest the said Catholicks, neither in publick nor private in the liberty of the exercise of their Religion, upon pain of being reputed Guilty of High Treason, and Di­sturbers of the Kingdoms peace and repose: this being his will and defini­tive Sentence.


But still I cannot forbear wondring about what Considerations made our Divines, and our Great Champions of the Church of England-Protestancy in the State as well as Church, afterward thus inclinable to act their Parts about Toleration, as Mr. Prynne hath mention'd.


They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy, and that by reason of the various growth of the Potency of foreign Princes and States, and of inte­stine Factions, the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage; and that where such Alliance was to be with the Famili [...]s of Roman-Catholick Princes, there could be no expectation of the Pope's relaxing his Laws by dispensing, without our Princes doing something of that kind as to theirs.

I might here observe to you, that we are told in The Regal Apology (that the Oxford▪Antiquities mention'd to have been writ by Dr. Bate) that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou: and if it were true that an Universal Toleration was agreed on by King James, it was intuitu majoris boni. The Palatinate was to be restored again, and the Protestants of Germany to be re-enstated in their Possessions on that Condition.

But to punish being a kind of Punishment, and it being irreligious to punish Men for Religion, and the highest tide of Anger being naturally succeeded by the lowest ebbe of it, and the thoughts of rigorous Severity in Prin­ces toward their Subjects being like such in the Head toward the Members of the same Body, and King Iames having found that the general abhor­rence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it, and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath, and finding, as appears by his long Proclamation of four sheets of Paper, declaring his. Pleasure concerning the Dissolving of the Parliament, A. 16 [...]1. that they were not the Papists who made his later breath so uneasie to him, and he being of opinion that the reason of the severe Laws was much aba­ted, it may abate of our wonder that in that Conjuncture he put a Period to their Execution.

Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the I [...]dges in the year following, to acquaint them that His Majesty having resolv'd (out of deep Reasons of State, and in expe­ctation of like Correspondence from foreign Princes to the Professors of our Religion) to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom; had Commanded him to pass some Writs under the Broad Seal [Page 99] for that purpose, and that he had accordingly done so; and tells them, that 'tis His Majesty's Pleasure that they shall make no niceness or difficulty to ex­tend that his Princely favour to all Papists imprison'd for any Church Recu­sancy whatsoever, or refusing the Oath of Supremacy, or hearing of Mass, or any other point of Recusancy which doth touch or concern Religion only, and not matters of State, which shall appear to you to be totally Civil and Political.


You lately ment [...]on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature, as was in the Spanish. W [...]at account doth Mr. Prynne give of that?


He tells you there, p. 69. that the French Ma [...]ch was soon Concluded in the life of King James, the Articles concerning Religion being the same al­most Verbatim with those formerly agreed on in the Spanish Treaty. And he there refers to Rot. Tractationis & Ratificationis Matrimon [...] inter Dom. Carolum Regem & Dom. Henret. Mariam Sororem Regis Franc. 1o Cat. in the Rolls: and then in p. 71. saith, Besides these general Articles of the Match, these particular ones were concluded and agreed on in favour of the Roman-Catholicks, the same in Substance with those of Spain, and where he saith the Second is to this effect, that the English Catholicks should be no more searched after (or molested) for their Religion.

But Mr. Prynne there particularly sets down only three short Articles, and those comprised in about six lines: and the words [or mol [...]ted] in the second Article are Printed in a different Character from the others, as if he thereby intended them as his own Explication of the word searched.


You just now mention'd King Iames his having in the year 1622. order'd all the Popish Recusants who were in Prison on the account of their Religion to be set at liberty: and you told me how he tacitly dispens'd with the Disability that Popish Physicians and Lawyers had incurr'd by Act of Parliament. Was that all the favour he shew'd Roman-Catholicks?


No: He allow'd them to make a very Considerable figure in the Go­vernment, as you may find if you consult the Iournals of Parliament, as referr'd to by Mr. Prynne, p. 66. & Seq. of that Book: For he there men­tions, that in the year 1624. The Commons sent a Petition to the Lords, desiring their Concurrence with them in presenting it to His Majesty, for re­moving Popish Recusants, and those whose Wives were Papists, from Offices of Trust, which by Law they were DISABLED to execute, which the Lords took into their Consideration, and which Mr. Prynne saith, was enter'd in their Iournal in this manner, Die Jovis viz. Vicessimo die Maii 1624. The Lord Archbishop of Canterbury reported, that at the meeting this Day with the Commons, they Presented an humble Petition to the King, de­siring this House to joyn therein with them. The which Petition was read in haec verba, &c.

In short, the Commons in their Petition take notice of the Growth of the Number of Popish Recusants in this Kingdom, and of their insolency in all the Parts thereof, and that many of them, contrary to the Laws, were g [...]t into Offices and Places of Government and Authority under the King: And the Prayer of the Petition is, That the Lords and Gentlemen there under­named, may be removed from all His Majesty's Commissions of great Charge and Trust, Commissions of Lieutenancy, Oyer and Terminer, and of the Peace, and from all other Offices and Places of Trust. And they in their first Sche­d [...]le there name 11 Lords and 18 Knights.

[Page 100]And in their second they name many Persons of Quality who were in Places of Charge and Trust in their several Counties, and had marry'd Popish Wives, and whose Children and Servants were bred up to Popery.


Doth any Act of Parliament disable a man from bearing Office because his Wife is a Papist, or because his Children or Servants are bred up to be Papists?


Yes, the Act of the Third of King Iames the First, cap. 5. doth it, as you will see if you consult it; for 'tis there Enacted, That no Popish Recusant Convict, nor any having a Wife being a Popish Recusant Convict, shall at any time after this Session of Parliament, or any Popish Recusant hereafter to be Convict, or having a Wife which here­after shall be a Recusant Convict, at any time after his or her Convi­ction, shall exercise any publick Office or Charge in the Common-wealth, but shall be utterly DISABLED to exercise the same by himself or his Deputy, except such Husband himself and his Children which shall be above the age of Nine years abiding with him, and his Servants in Houshold shall once every Month in the least, repair to some Church usual for Divine Service, and there hear Divine Service, and the said Husband, and such his Children and Servants as are of meet Age re­ceive the Sacrament of the Lord's Supper, and do bring up his said Children in true Religion.


Now have you set me a longing to know what the House of Lords did in the Case of that Petition about removing those disabled Persons from serving the King in those great Stations. And since the Judgment of Par­liament was always had in such great veneration, I think if the result of the desire of the House of Commons was that the Lords had joyn'd with them in the Petition, and had urged that the King could not dispense with that Act of Parliament and Pardon Disability, it may make a notable Pre­sident in the Case we have been discussing.


You will find that the Commons urged nothing to the prejudice of Prerogative in the Prayer of their Petition. Their style there was, We humbly beseech your Majesty graciously to vouchsafe that the said Lords and Gentlemen here under-named for this important Reason, and for the greater Safety of your Majesty and of your Realm, may be re­moved from all your Majesty's Commissions of great Charge and Trust, Commissions of Lieutenancy, &c. And the important reason did refer to the great Countenance hereby given to Popery, the great grief and offence to all his best affected and true loving Subjects by putting the Power of Arms into such mens hands as by former Acts of His Majesty's Councel are adjudged Persons justly to be suspected, &c.

But to let you see what the House of Lords did hereupon, Mr. Prynne tells you, p. 69. That this Petition being read, the House did defer the De­bate thereof at this time, for that the day was far spent. And answer was given to the Commons (who attended for the same in the Painted Chamber) that the Lords will send them an Answer of this Petition, hereafter when they are resolv'd thereof. Whereupon Mr. Prynne concludes his account of this Transaction thus, Whether any of these were displaced upon this Petition, I find not in any Memorials; it being certain some of them were not, but conti­nued still in these Offices of Trust.


How have you here disappointed my Curiosity in making that fer­ment then in the Government about the Disability of the Papists being dispens'd with, thus silently to go off through the House of Lords for­bearing to joyn with the House of Commons in their Petition!

[Page 101]

I shall here afford your Curiosity a recompence by observing it to you with allusion to some of the words of the Royal Martyr in his Answer to the 19 Propositions, That the ancient, equal, happy, well poysed, and never enough commended Constitution of the Government of this Kingdom having made this Nation so famous and happy to a great degree of Envy, &c. and the Lords being trusted with a Iudicatory Power are an excellent Screen and Bank be­tween the Prince and the People, to assist each against any Encroachment of the other, &c. that the Wisdom of that House in acting as it hath done, in many Conjunctures hath put an end to many ferments accidentally occa­sion'd by others mistakes about Prerogative, and whereby that august Assembly did sometimes Cunctando restituere rem, and by its forbearing out of tender [...]ess for Prerogative to give judgment about it, hath often to the Satisfaction both of the Prince and People, left the Regal Rights in their ancient quiet Estate.

I shall for this purpose observe to you, that I once reading to the late Earl of Anglesy when he was Lord Privy Seal, what I had in a Manuscript of mine set down, as the Fact of what had passed between the late King and the House of Commons concerning his Declaration of Indulgence on March the 15th, 1671. and the Penal Laws being thereby suspended (and the suspension of which the Commons then urged could not be but by Act of Parliament, and whereupon they apply'd to the King for the Vacating that Declaration) his Lordship did dictate to me in order to my Compleating the state of that Fact, and which I writ from his Mouth, as followeth, viz. But it is to be observ'd upon this whole Transaction between the King and the House of Commons, that the Lords had no hand in the Address to the King about this great Point; altho it be uncontroverted that the Lords are the only Iudicatory that can determine any controverted Point without an Act of Parliament, and either the King or the Commons might in a particular Case have had this Point brought by Appeal to the Lords, if they had pleas'd, and consequently might have effected the judicial decision of the same.


In your State of that part of the Fact that concern'd the Commons, did they Address against the Dispensing with Acts of Parliament▪


No, but only against the Suspending them, which are things of a dif­ferent Nature. The same House of Commons by having Iuly the 10th, 1663. resolved, That His Majesty be humbly desired to issue forth his Proclamation for the punctual and effectual Execution and Observance of the Act of Navi­gation without any Dispensation whatsoever, whereby the Act may be in the least violated, and to recal such Dispensations as are already granted, &c. did virtually shew a Deference to His Majesty's right of Dispensing. Nay, let me tell you, that the very many Acts of Parliaments which expresly pro­vide against the Crown's dispensing by Non-obstante in some particular Cases, may all be cited as Presidents or Iudgments of Parliaments for the propping up the Dispensative Power, and of Parliaments having admit­ted that Power in our Kings, the exercise of which they provide against and desire to take away in such particular Cases.

But by referring to the Fact of the entercourse between the late King and the House of Commons about the suspending the Penal Laws, I have took occasion to point out to you the Wisdom of the Government in then pas­sing that affair over without a judicial decision. And I can give you an in­stance of the Prudential measures formerly observ'd by Persons who made a great figure in the Administration of the Ecclesiastical Government of the Church of England, and who at the Consecration of Bishop Manwaring when on the usual Process at Consecrations to call all Persons to appear to shew cause why the Elect should not be Confirm'd, some then appear'd & objected against [Page 102] him, that upon his being Impeached 3o Car. 1. by the Commons, the Lords had given Iudgment against him to disable him from all Preferment in the Church; forbore to consider the merits of the Exception, and throwing them off by a Pretence of their being defective in some Formalities of Law, went on in the Confirmation.

And which is more, I can tell you that long afterward, viz. A. 1640. the Lords highly resenting both the Pardon and Bishoprick he had obtain'd, and calling to mind the Sentence they had pronounced against him, did on the 18th of April that year, refer the Consideration thereof to their Grand Committee for Privileges, it being also moved, that what can be alledged on the Lord Bishop of St. David's part, either by Pardon, Licence or otherwise, may be produced and seen at the Sitting of the Lords Committees for their full and clear understanding, and better expedition in the business: and on the 21st of April that year, order'd, that on the following Monday, the Records be brought into the House, that the House might determine the Cause, and on the 27th of April following, order'd the Cause to be heard the next day, and upon which day some such fatal Sentence being expected against the Bishop, as, And his Bishoprick let another man take, by reason of his having been judicially disabled; His Majesty commanded that Bishop not to Sit in Parliament, nor send any Proxy thither: and the serment of the debate went off without any Iudgment given by the Lords that might touch Prerogative in the Point.

And if in the year 1640. when the air of mens fancies was so much in­fected with the Pestilence of Faction, so much tenderness was shewn to Prerogative (and that too in the Case of a Criminal whom the Commons had for so many years made the great object of their anger, as one whom they look'd on as a Proditor or Betrayer of his Country, and Betrayer of their Properties) the Loyal may well say quid non speremus, as to any future ferment that can rise in Parliament, being allay'd without Prejudice to the Crown.

The Iournals of Parliament in the Beginning of the Reign of King Charles the First do tell us of the great ferment about the Pardon of Bishop Montague, whom the Commons had impeach'd before the Lords, and who after the Parliament was Prorogued to the 4th year of the reign of that Prince, had obtain'd his Pardon in the time of the Prorogation, and that such Pardon was by the Commons question'd, and that such questioning soon evaporated.

But according to that Great Saying of Sir Harry Martin in his Speech at a Conference between both Houses (as you will find it in R [...]shworth) after he had mention'd the inconvenience of nice debates about the Original, La­titude and Bounds of Sovereign Power, viz. I have ever been of opinion that it is then best with Sovereign Power when it is had in tacit veneration, and not when it is prophaned by Publick Hearings and Examinations, you will find that it hath been the usual Practice of our great Loyal Patriots, in many Critical Conjunctures of time to prevent the popular Criticising on Controverted Points of Prerogative, and to provide for the ease both of Prince and People by giving no other rule in the Cause then the putting it off in longissimum diem.


I suppose that excellent Political remark of Sir Harry Martin's was so made by him in the Conjuncture of the Petition of Right. I have read of the great ferment the Petition of Right made in the beginning of the Reign of the Royal Martyr: and I shall be glad to know if the dispensing with the Penal Laws, and particularly such as are inclusive of disability made any part of the fermentation.

[Page 103]

No doubt if the Dispensative Power of the Crown as to any Penal re­ligionary [...]aws, had then appear'd any considerable gravamen to any of the three Estates, they would then have cry'd out of it: But which they did not. Yet I shall tell you that they had a fair occas [...]on then given them to do it if they had thought it tanti. For in the first year of his Reign there was a ferment in Parliament about the Penal Laws against the Papists, and particularly the disabling ones, but which soon went off (as I may say) by insensible Perspiration.

It s [...]ems that Mr. Prynne in p. 74. and 77. saith both Houses that year ha­ving presented a Petition to that Prince wherein they took notice that his Majesty had in his Princely Wisdom taken order that none of his natural born Subjects not professing the true Religion and by Law establish'd, shall be admit­ted into the Service of his Royal Co [...]sort, and having further desired that his Majesty would be pleas'd to remove from all Places of Authority all such Per­sons, as are either Popish Recusants, or according to direction of former Acts of State to be justly suspected, and that his Majesty said he would give order for it, yet that that Parliament being unhappily dissolv'd in discontent, his Majesty thought not fit to shew such severity to Recusants as he intended. And in p. 76. Mr. Prynne had mentioned that Sir Iohn Winter, Mr. Wal­ter Mountague, Sir Maurice Drummond, and other Papists, were admitted in her Majesty's Service. But by what appears from Mr. Prynne in p. 80. in the following Parliament in the Second year of that King, the House of Commons took divers Examinations concerning Recusants that were in Office, and at last agreed on a Petition against Recusants in Office, and to present their Names therewith to the King to the end they might be removed: and He then saith, that Martis 6. Iunii 2. Car. Regis. The Petition against Re­cusants in Authority was engrossed, read and allow'd to be presented to his Majesty, and this to be done by the Privy-Councel of the House, and Sir John F [...]llerton, which was done accordingly: but with what real success, I can give no exact account.

But that the disabling and other Laws against the Papists had been dis­pens'd with by the Royal Martyr as well as his Father, any one will conclude who reads what there followeth, viz. In this Parliament these ensuing Arti­cles against Popish Recusants were Consulted of in the House of Commons, with an Intent to draw them into an Act; and of which the 9th is, No Recusant to bear Office of Iustice of Peace or otherwise, or any man whose Wife shall be a Recusant, or practice Law, Common, or Civil, or Physick, nor have Command in War, &c. And I should first have told you that the Third was, A New Oath with more Additions to be taken concerning the Supremacy.


Good God! A new Oath with more Additions about the Supre­macy!


You may suppose it would have been seemingly a New Oath by that Parliament's approving all the Authentick Regal Interpretations of the old one, as Queen Elizabeth's Interpretation was approved by her Par­liament.

But you may here observe, that tho the Disabling and other Penal Laws were by this Pious Prince tacitly and often dispens'd with, and the time of the doing of it caus'd some temporary ferments to arise in the Minds of his Subjects in Parliament, yet their animosities have soon tacitly evaporated, and the Regal Power of Dispensing then came to no question. The Puritan Dissenters and scruplers of Ceremonies, knew they wanted the benefit of that Power as well as the Papists: and the exercise of that Power was in the Petition of both Houses before mention'd implored as to the disabled or silenced Ministers. And therefore you will not wonder at it when I tell you [Page 104] that during all the great Patriotly efforts that were made for the removing all Grievances by the Petition of Right, there was no offence taken at the Right of the Dispensative Power.


I thank you for that observation.


The thought is too obvious to deserve thanks: and I assure you it is a kind of Proverbial Saying in the Canon Law, that Dispensationum modus nulli Sapientum displicuit.

But even in the Conjuncture of the Petition of Right, to shew you that the Dispensative Power did not in the least contribute to the ferment, I shall let you see out of Rushworth how Mr. Glanvile (who made so great a figure of a Patriot then in Parliament) did with the greatest popular applause appear as an Assertor of that Power, and when in his Speech in a full Committee of both Houses (May 23. A. 1628.) he inter alia said, There is a Trust insepa­rably reposed in the Persons of the Kings of England; but that Trust is regu­lated by Law: For example, when Statutes are made to Prohibit things not mala in se, but only mala quia Prohibita, under certain Forfeitures and Pe­nalties to accrue to the King and to the Informers that shall sue for the breach of them, the Commons must and ever will acknowledge a Regal and Soveraign Prerogative in the King touching such Statutes, that it is in his Majesty's absolute and undoubted Power to grant Dispensations to particular Persons, with the Clauses of Non-obstante to do as they might have done before those Statutes, wherein his Majesty conferring Grace and Favour upon some, doth not do wrong to others. But there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded. By those Statutes the Subject hath no interest in the Penalties which are all the fruit such Sta­tutes can produce, until by Sute or Information he become entituled to the particular Forfeitures; whereas the Laws and Statutes mention'd in our Peti­tion are of another Nature. There shall your Lordships find us to rely upon the good old Statute called Magna Charta, which declareth and confirmeth the ancient Common Laws of the Liberties of England: and there he speaks afterward of other Statute Laws not inflicting Penalties upon Offenders in malis prohibitis, but Laws declarative or positive, conferring or confirming ipso facto an inherent Right and Interest of liberty and freedom in the Sub­jects of this Realm, as their Birth-rights and Inheritances descendable to their Heirs and Posterities, the Statutes incorporate into the Body of the Common Law; over which (with reverence be it spoken) there is no Trust reposed in the King's Soveraign Power or Prerogative Royal to enable him to dispense with them, or to take from his Subjects the Birthright which they have in their Liberties, by virtue of the Common Law.

So then according to the sense of this loyal Patriot, if the King shall by his Prerogative dispense with the Disabilities or Premunires or 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 3o Iac. c. 5. whereby Convicted Recusants are disabled from Military Offices, and Offices in the Navy, and in the Law, and f [...]m the Practice of Phy­sick, and any publick Office and Charge in the Commonwealth, or the Test-Act 25o 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 [Page 105] the P [...]tition of Right was no way to entrench upon his Prer [...]gative; and their saying that they had neither intention no [...] power to hurt it, &c.

You may too call to mind that as during the f [...]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 fl [...]ght beyond what was moved for or adjudged in the late Case of G [...]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 Eccle [...]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 Lice [...]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 S [...]aftsbury appear'd in Print as owning the legality of the King's Prer [...]ga­tive in that kind, and without his Lordship's being in the least censured for it by any of that num [...]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.


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?


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 [...]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 [Page 106] 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.


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 'tis 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.


You say right. The King may thus according to his Lordship's Opinion suspend all Penal Disabilities as well as other Penalties incurr'd by Acts of Parliament, and particularly by the Test-Act of 25o Car. 2. and hereby to the Great figure he made in the framing of that Act, any who are displeas'd with the Act, may apply the Una eademque manus, &c.


But I suppose his Lordship there has nothing that may favour the repealing of the Test, or any of the Penal Laws against the Papists.


None would expect from him anything to be moved for the repealing of the Test; however he allow'd Prerogative to suspend it. But at that time that all People of narrow Souls and ignoble Thoughts were with so much clamour hunting down all Roman-Catholicks without distinction, and when the most devout among them by being (as it were) ad bestias dam­nati and devoured by Informers, appear'd as a spectacle of delight to many inhumane Protestants, his Lordship's humanity was so great as to incline him in p. 6. there to give them somewhat like a Quietus from all Pecuniary Laws. And the truth is when I consider how little Wool the fleecing of Roman Catholicks and Quakers or any Heterodox Religionaries at home or abroad hath brought to the Exchequer of any Prince or State, and only to Informers, and that the Consciences of peaceable Men have been burden'd by Men of no Conscience, and by the turba gravis paci who are indeed burthens of the Earth, I tremble to think what occasion may have been taken by Male-contents to say in their Hearts as to any such Prince or State, according to those words of the Psalmist, Thou sellest thy People for nought, and dost not encrease thy Wealth by their Price, or and takest no Money for them. I shall at some other time of our meeting give you some account cut of the Records of the Exchequer of the inconsiderable Sums of Money, [Page 107] that have for several years been brought to it by the severe Prosecutions of Roman-Catholicks and Quakers.

But there is another thing very well worth your reading in that Book, and which is the more proper for our Consideration as suiting some great Points we have been discoursing that concern our Oath, and that is this; H [...]s [...]ate Majesty's Ministers in that year 1675. having brought in a Bill in Parliament for a TEST extending to Protestants (and which as the Book saith, was call'd by one of His Majesty's Ministers, A moderate Security to the Church and Crown) you will there in p. 15. see it mentioned how as to the Assertory Parts of the Oath in that Test, It was worthy the Conside­ration of the Bishops whether Assertory Oaths which were properly appointed to give Testimony of a Matter of Fact w [...]ereof a man is capable to be fully assured by the evidence of his Senses be lawfully to be made use of to confirm or in­validate Doc [...]inal Propositions, and whether that Legislative Power which imposeth such an Oath, doth not necessarily assume to it seif an Infallibility? And as for promissory Oaths, it was desired that those learned Prelates would consider the Opinion of Grotius De Jure Belli & Pacis, l. 2. c. 13. who seems to make it plain that those kind of Oaths are forbidden by our Saviour Christ, Matth. 5. 34, 37. and whether it would not become the Fathers of the Church when they have well wei [...]h'd that and other places of the New Testament, to be more tender in multiplying Oaths then hitherto the great Men of the Church have been? It is there toward the end of the page mentioned how some of the Lords d [...]sired that it might be clearly known whether it were meant all for an Oath, or some of it a Declaration, and some an Oath? If the latter, then it was desired it might be distinctly parted, and that the declaratory part should be subscribed by it self and not sworn. There was no small pains taken by the Lord Keeper and the Bishops to prove that it was brought in; the two first Parts were only a Declaration, and not an Oath: and tho it was re­ply'd, that to declare upon ones Oath, or to abhor upon ones Oath, is the same thing with, I do Swear, yet there was some difficulty to obtain the dividing of them, and that the declaratory part should be only Subscribed, and the re [...]t sworn to.


But have you mention'd these things, as if you would incline me to concur in opinion with that Lord as to the King's Power of suspending the Penalties incurr'd by Acts of Parliament, and to agree with the Measures of some other Lords then about Oaths assertory and promissory, as re­ferr'd to?


If I were of the same opinion about the King's Power in that Matter, as that Lord and Sir William Ellis were, I would however forbear troubling you with it at this time while we are considering the Obligation of our Oath of Supremacy in order to our assistance and defence of the Preheminence of the Dispensative Power. And therefore I shall not in the least endeavour to incline you now to imbibe the perswasion of any nice Controverted point of Law or Theology, and wherein there seems probab lis causa litigandi. And if when we are parted, you on your recollection of our Discourse at this or our first meeting, should have the least trouble by calling to mind any thing I have occasionally mention'd that is matter of Controversie, you may with all my heart put it off with a temporary transeat from your thoughts.

But one of my aims in referring to that Opinion of his Lordship was, That knowing you to be much concern'd for the ease and quiet of your Prince and Country, I might Console you with an Instance of a great ferment about the Regal Power, suddenly going off: and as that Book too shew'd you that another did in the Government that was occasion'd by the new Test-Bill then introduced.

[Page 108]And I must tell you that another of my aims in my pointing you to his Lord­ship's Observation of the Suspensions of the Penal Statutes in the late Reigns, was occasionally to direct you to a tenderness for the Regal Rights in gene­ral, and for the undoubted Right of the Dispensative Power in Particular. The same thing likewise hath been my aim in the several Presidents I have given you of the Ecclesiastical Power by Queen Elizabeth▪ King Iames, and King Charles the First exercised in suspending Penal Laws.

The expression of tenderness for the Rights of our Princes hath been much used by the loyal Patriot'y Writers in the late Reigns: And here I shall à propos apply it, as the Resuscitatio, Part. 1. p. 37. mentions it as used by my Lord Bacon in a Speech in the House of Commons in the Reign of King Iames the First, to the Question now before us in the Reign of King Iames the Second. His Lordships words are, Since therefore we have a Prince of so excellent Wisdom and Moderation, of whose Authority we ought to be TENDER as he is likewise of our Liberty, let us enter into a true and indifferent Consideration how far forth the Case in question may touch his Authority, and how far forth our Liberty. And to speak clearly, in my opinion, it concerns his Authority much, and our Liberty nothing at all.

That Expression concerning tenderness for the Regal Rights was very ac­ceptable to the House of Commons, when his late Majesty in his Letter to them from Bredagh, April 14. 1660, thus made use of it, viz. We have not the least doubt but you will be as TENDER in and jealous of any thing that may infringe our Honour and Authority, as of your own Liberty and Property, which is best preserv'd by preserving the other.

Remember therefore that your tenderness for Property is best preserv'd by your tenderness for the Regal Authority: and if you would have your thoughts adorn'd by a constant Idea of true English Loyalty like a noble Picture retain'd there, let me direct you to a Saying, which like an Original drawn by a great Master, may be fit for you to Copy after, viz. that Saying of the Lord Keeper Coventry in a Speech in the House of Lords, viz. Some would have the King's Prerogative rather tall then great; others è contra. But none can be truly loyal, but he that is a good Patriot, and none can be a good Patriot, but he that is truly loyal.

Nor need it be further insinuated to you, that without your keeping up a tenderness for the Regal Rights, you cannot maintain your tenderness for Oaths. And here I must take occasion to tell you that one of my aims in entertaining you with the Queries relating to Oaths out of that Book, was to lay before your thoughts a tenderness as to Oaths in general, both in keeping the lawful ones you have taken, and in not imposing unlawful, doubtful, un­necessary, or inexpedient ones on others; and on such as our Prince consi­dering the several Constitutions of their minds both as to firmness and infirmness, hath thought fit to exempt from taking such strong Physick.

Moreover if you will think that another of my aims was to mind you that the same Queries might have been as ingeniously and ingenuously put in the year 1673. before the passing of the Test-Act, as they were in debating the Test-Bill in the year 1675, I shall allow you so to do.

You may too (if you will) here occasionally consider how soon God in the course of his Providence doth sometimes turn the Tables, and make such who were lately so active in imposing on others Oaths that seem'd doubtful and oppressive to them, to be in danger of suffering by the like Impositions. Mr. Burrough's a Pious Independent Divine (who lived in the late times) referring in his Irenicum to the Impositions and Persecution de­sign'd by the Presbyterians against those of his Perswasion, saith there, but [Page 109] 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 Di [...]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, [...]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 whol [...] Million of Oaths may stand (as some speak of Angels) on the point of a sharp need [...]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 o [...]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.

[Page 110]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 taken to the Oath tender'd to him as Sheriff, on the account of several Additions alledged by him to be in the Oath that were not in the Ancient Oath in the Register, and afterward Confirm'd and Appointed by the Statute of 18 Edw. the Third; and all the Iudges being Consulted as to the allowance of the same, tho they allow'd of his first exception namely as to his suppressing all Errors and Heresies com­monly call'd LOLLARIES, and being assistant to Commissaries and Ordina­ries in Church-matters, &c. and that that Clause was fit to be omitted out of the Oath, because it is appointed by Statutes that are repeal'd, and was in­tended against the Religion now Establish'd, yet as to his second Addition complain'd of, the greater part of the Iudges were of opinion that an Oath in this Point may be well enjoyn'd by the King and Order of State without Parliament, and that it may well be imposed on the Sheriff to take, being for the publick Benefit and Execution of the Laws. And as to his Fourth Ad­dition complain'd of, namely, That he should Cause the Statute of Winton and the Statutes against Rogues and Vagabonds to be put in execution, where­unto he excepted, because the Statute of Winton was alter'd, and the Statutes against Rogues and Vagabonds are appointed to be executed by the Iustices of the Peace, and not by the Sheriff: to this the Judges said, that this Fourth Addition rests on the former reason, that this Oath being appointed and con­tinued divers years by direction of the State, altho without the express Autho­rity of any Statute Law, yet may he well be continued for the publick benefit in repressing such Persons, &c.


What a terrible thing was it that that Clause about suppressing Lolla­ries, &c. should continue in the Oath so long after the Reformation: and that Sir Edward Coke should be the first Protestant Sheriff we have heard of whose Conscience was so delicate as to refuse to swallow that poiso­nous Clause?


You may too as justly say what a terrible thing is it that so many Protestants who have formerly by the frequent swallowing the Poison of Contradictory Oaths, habituated themselves to the quiet concocting of all Oaths (as the King of Pontus brought himself at last to digest all Poisons) will yet be so ready to endeavour to compel the Consciences of others to swallow such Oaths that they believe or suspect to be poisonous; a thing that hath probably tended to make so many among us to Nauseate the use of all Oaths as unlawful.


Whom do you mean by those?


The Quakers. And here I shall freely tell you that Providence having permitted so numerous a Sect as that of the Quakers among us to bear their Testimony against the lawfulness of Oaths in general, I shall be well content if the event of the bending the Crooked stick the contrary way (as my Lord Primate's Expression was) may be an universal tenderness as to Oaths, as I just now described it; and the want of which hath (as I shew'd you at our last meeting) been so scandalous to our Country, and brought an opprobrium both on Protestancy and Christianity it self.

Alexander ab Alexandro, l. 5. tells us, that there was no use of Oaths among the Phrygians. And tho Grotius saith in his De jure Belli & Pacis, that jure gentium testi injurato non creditur, yet it was by Polybius ob­serv'd that in the better and simpler Ages of the World Oaths were sel­dom used in Iudicatures. The Athenians would not suffer Xenocrates a Person of known Probity to take his Oath at the Altar, as a thing below his reputation. Gellius, l. 10. c. 15. saith, Verba Proetoris ex edicto perpetuo [Page 111] de Flamine Di [...]li & de Sacerdote Vestoe adscripsi. Sacerdotem Vestalem, & Plaminem Dial [...]m in omni meâ jurisdictione jurare non cogam. And Livy hath it, that among the Romans the Flamen Dialis was not in any case allow'd to swear, least at any time he should forswear, which in him was held as the most hainous thing. I have too somewhere read Plutarch cited for justifying to this purpose the reasonableness of their not swearing; for that an Oath was a kind of torture to a free man: and that it was absurd not to credit their words: and for that an Oath draws after it an Imprecation or Curse in Case they should be forsworn, which seems to be a detestable omination toward the Priests of God.

Iosephus relates it, that the Essenes Word was as sure as an Oath. So great likewise was the reputation of the Christians in the Ancient times for truth in Matters asserted or promised by them, that the Saying of Christianus sum did frequently pass currant for the Cautio Iuratoria. And I shall always with reverence think of Bellarmine's Tutissimum, and of S. Austin's Nullum Iuramentum tutum.

A late ingenious Writer apply'd to the Clergy's obtaining Canons for their not Marrying, the Observation that they always knew what was good for themselves; but I shall think it more applicable to what I read of in the Book of Mr. Ley beforementioned, p. 112. that as S. Basil was very zealous in behalf of Bishops that they might not be put to swear in respect of the Peril of an Oath, so he prevail'd so far as to free them from that Peril: and that the Council of Challons, Can. 18. was thus favorable to Presbyters: and that the Triburiensian Council favour'd them with this Constitution, that a Presbyter should not be compell'd to swear, but instead of an Oath, he should be question'd upon his Holy Consecration in verbo sacerdotis: because (as the reason is there rendred) Our Lord forbad his Disciples to Swear.

And I shall tell you, that if you will allow Lawyers to know what is good for themselves, you will find them of all sorts of men to have the greatest aversion against being Witnesses.

The Iesuites too, who are by all reputed wise in their Generation, are by Dr. Donne in his Pseudo-Martyr, p. 350. referred to as having so extraordi­nary an aversion against Oaths, that he cites the Spongia pro Iesuit, p. 79. for their out-doing the Essenes in hyperbolical Detestations of Oaths.

I account it for the honour of the Age that any one doth fall under the Character of bipedum nequissimus who being sued by a Quaker at Com­mon-Law for a just Debt, would obstruct such Debt by an Injunction out of Chancery, till the Quaker hath there answer'd a Shamming Bill upon his Oath.

And as by the Clemency of His Majesty's Government, Quakers there ma­king Answer upon their Oath to Captious Bills hath been to the general Sa­tisfaction of the compassionate Just (as it were) tacitly dispens'd with, and as likewise their Promissory Oaths of Allegiance have been, I doubt not but his express or tacit dispensing with other Loyal and Conscientious particu­lar Persons doubting of the lawfulness or expedience of some Promissory Oaths, will be as generally grateful.

I wish there were no greater 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 [Page 112] & per su [...]m Nay, in omnibus qu [...]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.


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 in­corpo [...]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.


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 [Page 113] 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 State­Religion, will prove as insignificant as did the old Politicks I shall refer you to in the Sacred Story, and when the whole Earth was of one Language, and of one Speech, and the Vogue was, Let us build a City and Tower whose top may reach to Heaven, and let us make us a Name, least we be scatter'd abroad on the face of the whole Earth. But Heaven confounded their Lan­guage, and their City was call'd Babel, and their feared Dissipation was their Punishment. They were so diffident of the Divine Promise whose garranty they had, that they were resolv'd by their own hands to provide against all Dangers of a future Deluge, and having built their Tower with Brick, they thought 'twould defend them from the Power of Fire, concerning which they had heard the Tradition that a general Destruction of the World should proceed from the fury of that Element; and they vainly endeavour'd to secure themselves against the anger of Heaven rather by a lofty Pile, then by lowly Minds.


That wretched vulgar Error you referr'd to, did shew that the line of Confusion was stretch'd forth on Men's understandings as well as on the Realm in that Conjuncture: and I have observ'd that that vulgar Error did last to the very time of the ferment about the Exclusion, and long before which time as well as then some have talk'd and writ at this rate, viz. That the Oath of Supremacy was expresly made (as the title of it shews) to shut out the Usurpation of foreign Powers and Potentates, and was [Page 114] not meant to provide against any popular Usurpations or Diminutions of the King's Supreme Authority.


O God! But to speak or write at that rate to Conscience, is Chicanerie. And I have elsewhere mention'd what one whom I cannot too often men­tion to be as fair a dealer with Conscience as any the Age hath had, told us in his sixth Lecture of Oaths, about the Oath of Supremacy binding in this Case. You know I mean Bishop Sanderson, who there shews, that tho Popes Usurpations or arrogating to themselves the Supreme Iurisdiction in spiritualibus throughout this Kingdom, was the Cause of the Oath of Suprema­cy, yet the Oath is obligatory according to the express words in the Utmost Latitude: the reason is, that the intention of a Law is general to provide against all future inconveniences of the like kind, or nature.

Moreover the words in Queen Elizabeth's Admonition referring to the Persons call'd to Ecclesiastical Ministry in the Church, as the doubters, and the tenour of all the subsequent Interpretations as speaking them principally occasion'd by the doubters in the Church of England, do further shew the Vanity of that Objection.

And if you will more particularly think of the Queen's Authentick In­terpretation of that Oath and approved in Parliament, you will find the Oath of Supremacy to be an Oath of Allegiance, and that it may be so-likewise properly termed. For in the beginning of the Admonition you will thus find it, viz. The Queen's Majesty being inform'd that in certain places of this Realm, sundry of her native Subjects being call'd to Ministry in the Church, be by sinister Perswasion and perverse Construction, in­duced to find some scruple in the form of an Oath, which by an Act of the last Parliament is prescribed to be required of divers Persons for the recognition of their ALLEGIANCE to her Majesty, &c.


As one may perceive by what the Queen's Interpretation in the Ad­monition refers to, that there was a great ferment in the Kingdom about the sense of the Oath, so suitably to what you mention'd of the Prudence of our Ancestors that caus'd various ferments to go off so insensibly, the next Par­liament in approving her Interpretation without troubling themselves to que­stion the Authentickness of it, doth corroborate your observation of the Excellence of the English understandings.


It doth so. The fermentation in the minds of the People you speak of had been Epidemical. And tho one might fancy by the Proem of the Admonition that the Interpretation as well as the Dispensing with Disability had an eye but on an inconsiderable number of People there referr'd to in the foremention'd words of sundry of her Majesty's Native Subjects in cer­tain places of this Realm, &c. yet any one who knoweth the History of those times will find the Interpretation and Dispensation (as I may say) Calculated for the Meridian of all England, and the Interpretation having an eye on all Christendom.

There was then in the Morning of that Queen's Reign, and of the restora­tion of the Reform'd Religion, such a thick mist of causeless Fears and Iealousies that had generally o'erspread the minds of Protestants and Papists shortly after the Birth of the Statute of 1o Eliz. c. 1o. that nothing but the Supremacy both of Power and Reason that shone in her authentick Interpre­tation of that Statute could disperse, and that too not suddenly. For as Mr. Nye in his Book of Two Acts of Parliament, or Observations on that Oath, tells us, It is mention'd in the Admonition that the Queen's Ecclesiastical Power is the same that was challenged and used, by Henry the 8th, &c. which is supposed by some to be the same that was in the Pope, the Person only and [Page 115] not the Power changed: so that our Princes are but secular Popes. This Obje­ction was strengthen'd by the subtlety of Gardiner abroad: and at home by a Sermon Preach'd at Paul's Cross in the year 1588. by Dr. Bancroft, who calls Q. Eliz. a Petty Pope, and tells us her Ecclesiastical Authority is the same which the Pope's was formerly: and in the Margin opposite to what he had said of the subtlety of Gardiner, strengthening the Objection abroad, hath these words, viz. Whom Calvin terms Imposterille. And Mr. Nye after­ward goes on to shew how the 37th Article did remove the Objection suf­ficiently.

The Author of The true Grounds of Ecclesiastical Regiment, Printed in London, A. 1641. doth in p. 53. mention some mens objecting it against the Ecclesiastical Supremacy of our Monarchs, that it may descend to Infants un­der Age, as it did to King Edward the 6th, or to Women as to Queen Mary and Queen Elizabeth, and that whatsoever we may allow to men, such as Hen­ry the 8th; yet it seems unreasonable to allow it Women and Children. The Papists think this Objection of great moment, and therefore Bellarmine in great disdain casts it out, that in England they had a certain Woman for their Bishop; meaning Queen Elizabeth: and she knowing what an odium that word would draw on her both among Papists and many Protestants also, Consults her Bishops about it, and by their advice sets forth a Declaration, certifying the World thereby, that she claim'd no other Headship in the Church, but such as might exclude all dependency on foreign Headships, and secure her from all danger of being deposed, &c. The Bishops in this did as warily pro­vide for their own Claim as the Queen's. And the Roman-Catholick Author of the Advocate for Conscience Liberty, discoursing of the Oath of Supremacy in p. 181. & seq. saith, That Luther, Calvin, Knox, Gilby disliked it: and mentions that a Iurisdiction purely spiritual was communicated to H. the 8th by his Supremacy, and assumed by him, and that he wanted his Spiritual By­title of Supremacy to justifie his Divorce, a [...]d his taking the Church Revenue into his hands: and that the Protectorship in E the 6th's time by virtue of the Oath of Supremacy continued to make new Church-Laws, Institutions, &c. and that Queen Elizabeth reassumed this Iurisdiction, having a greater neces­sity for it then her Brother, because her Marriage was declared null by the Pope. So then the state of Protestancy abroad and at home call'd on the Queen to distribute or dispense her Supreme Power in her Law by her Inter­pretation making a change not of it, but in the body of it: and which had it been changed by a repeal in Parliament for another, would have seem'd to blemish her figure of semper Eadem, and have reflected on the Under­standings and Consciences of those who had before took the Oath.

There was then in that Conjuncture an universal outcry of Conscience that Sin lies at the door, a thing worse then Hannibal ad Portas; a burthen that hath caus'd all the Groans of the Creation that ever happen'd. And where there is Periculum animae there is always Periculum in morâ, and which the Queen's authentick Interpretation did remove, and which was approved by the next Parliament: and no noise made or complaining heard in our streets about any seeming Alteration made in the Law or Oath it self, by the Prerogative of interpretation or acquittal from the disabling Punish­ments then exercised. And it is but congruous to humane Nature and com­mon Policy in men when they see any thing not ill in it self done that hath eminently conduced to make the World easie, not to embarass such thing with litigious scruples about the fieri non debuit, nor to adventure to trou­ble the World again when it is inclined to and resolv'd upon its rest. Some thoughts of this Nature probably inclined my Lord Coke to shew the Com­plaisance he did, not only to King Iames his incapacitating Canon about [Page 116] the double Subscription, but as to the Oath against Simony & that of Canonical obedience, and which inclined Judge Croke to be pleas'd with the Canons of 1640. tho containing the Oath with an Et caetera, and which made the Iudges so apt to over-rule some of Sir E. Coke's Exceptions to the Sheriffs Oath, as I have mention'd.

You may indeed find that some among the Puritans in some Conjun­ctures in Queen Elizabeth's time, did presume to reproach the Government of the Church with her having dispens'd with the disability of some Persons incurr'd by Act of Parliament. The Author of the famous Book publish'd in her Reign, call'd, An Abstract of certain Acts of Parliament, hath in the Conclusion these two factious Queries, viz. Whether a mere Lay-man, no Do­ctor of the Civil Law, may be a Bishop's Chancellor, and so may Excommuni­cate? Whether a mere Lay-man no Doctor of the Civil Law, may be a Bishop's Register, contrary to an Act of Parliament? The Author intendeth there to referr to the Statute of 37o. H. 8. c. 17. and as he had before expresly done in p. 196. & Seq. and of which Statute we have so much discours'd; and he in p. 201. instanceth in many Lay-men who were not Doctors of the Civil Law, and yet then exercised Ecclesiastical Iurisdiction. He had too in p. 196. took notice that as that Statute establish'd and confirm'd to the King and his Successors, and so unto our most Gracious Soveraign the Queen's Majesty that now is, lawful Preheminence, Power, Superiority and Lordship over all Persons within her Dominions of what state or Condition soever, touching Punishments for any Heresies, Errors, Vices, Schisms, Abuses, Ido­latries, Hypocrisies and Superstitions springing or growing by means of any her disobedient and disloyal Subjects; so hath her Majesty by her Injunctions pub­lish'd, that her Highness did never pretend any Title or challenge any Au­thority to punish any of her Subjects for any of the said Offences by Censure Ecclesiastical in right belonging to her Royal Person; but that her Highness meaning and intent is and always hath been to commit the execution thereof always to the Ecclesiastical State of her time: and he then sets down her In­terpretation in the Admonition.

But had that Author consider'd how it was declared by that Statute, that by Holy Scripture all Authority and Power is given to His Majesty, and all such Persons as His Majesty shall appoint to hear and deter­mine all manner of Causes Ecclesiastical, and to correct Uice and Sin whatsoever; and that this Statute was revived by the 1st of Eliz. he would not have wonder'd at the Queen's allowing that Statute to be dispens'd with as it was. Nor would any one therefore wonder at the Royal Martyr in the 12th and 13th Canons of A. 1640. Condescending to humour the Com­plaints of the Puritans by an equal Interpretation of that Statute of 37o H. 8. and by dispensing with it as he did; and that so far as to the disabling Lay­Chancellors to proceed in such Censures as they were enabled by that Sta­tute to do.

Mr. Bagshaw in his first Argument in Parliament concerning the Canons thus reflects on the Clergy for those two Canons, viz. Concerning the 12th and 13th Canons touching the freeing and discharging of Chancellors and Offi­cials from executing any Excommunication in their own Person, or any Cen­sure against the Clergy, because they are Lay-men; I say, that in doing and enacting this they have done quite contrary to an Act of Parliament still in force, in taking from them this Power of exercising the Censures of the Church which that Statute gives them: which I did look when some Ci­vilians now in the House should have maintain'd. And altho it were to be wish'd that only Clergymen should have this Power of Excommunication, and other Censures of the Church; yet seeing an Act of Parliament hath [Page 117] given this Power to Lay-men, it is high Presumption to make Canons against it.

But he well knew that after the stamp of the Royal Authority put on these Canons as well as before, Lay-men in the Court of Delegates did Ex­communicate, and as they did in the high Commission. And you may ob­serve it, that in the Commission granted Primo Elizabethae to her Commissio­ners pursuant to the Statute of that year, there were but two Clergy-men (and those Bishops) and 17 Lay-men.

My Lord▪ Coke, Inst. 4. c. 74. writing of the High Commission in Causes Ecclesiastical, saith, There is no question but the Commissioners for such Cau­ses as are committed to them by force of this Act, may, if the Commissioners be Competent, proceed to deprivation of the Popish Clergy which was the main object of the Act, or to punish them by Ecclesiastical Censures, &c. And with­out question if 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 [Page 118] 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 1o 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.


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.


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 before­mention'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 13o 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 1o Elizabethae, Concerning Commissioners for Causes Ecclesiastical, you will there find that this Act of the late King's loyal long Parliament, viz. 13o 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, [Page 119] (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 making his Interpretation of the Law to be a rule in all Cases, as in divers late Proclamations he hath done. And if you will look on His Majesty's Answer to the Declaration of b [...]th Houses of Parliament of July 1. 1642. you will find there very many Profound Observations and Presidents, and Au­thorities of Law, and wherein he several times refers to the happy times of that good Queen Elizabeth, as well as to ancient Times, and he thence taking his measures, saith in p. 15. The King caus'd Proclama­tions to be made; for in such Cases Proclamations declaratory were not conceiv'd in those times to be illegal▪ &c.

And you may easily imagine this Power of authentick Interpretation ve­ry well Consistent with the just Power of the House of Lords in declaring the Law in a particular Case: of which I occasionally mention'd to you the late Earl of Anglesy's opinion. But how not only the Lords, but the House of Commons did often during the late Rebellion encroach on the Regal Power of declaring, and by Ordinances without and against the King's consent, I shall some other time shew you at large.


Can you readily now at this time give any instance of the House of Commons th [...]n doing any thing of that Nature?


Yes: and I can refer [...]ou for the fact of it to The Declaration of King Charles the First, of August 12. 1642. to all his l [...]ving Subjects; and who there mention [...]That after several in imations of Treasons, PLOTS, and Conspiracies [...] the Papists, of great Provisions of Arms by them, and training Men under-ground, and many other false Reports created, spread and countenanced by themselves upon some general Apprehensions of Designs against them, a Protestation is made in the House of Commons for Union and Consent among themselves to perform those Duties which (if they had meant no more then they had express'd) had been sufficiently provided for by the Oaths they had already taken, and which their former Duties obliged them to. Here­upon a Protestation is framed, and being put into such words as no honest man could believe himself obliged by it to any unlawful Action, was voluntarily taken by all the Members of the House of Commons, and presently recom­mended to the House of Lords, where it receiv'd the same Countenance: that is was look'd upon as containing nothing in it self unlawful, tho some Mem­bers of that House refused to take it as being voluntary, and not imposed by any lawful Authority. Then 'tis recommended to the City of London, and over all the Kingdom by Order from the House of Commons (a strange and un­heard of Usurpation) to be taken by all Persons. But within very few days, upon Conference among themselves, and among those Clergymen who daily sol­licite their unlawful and unwarrantable Designs with the People, they find they were by this Protestation so far from having drawn People into their Combination, that in truth all men conceiv'd that they were even engaged by it against their main Design, by promising to defend the true Reform'd Protestant Religion express'd in the Doctrine of the Church of England:

And thereupon some Persons of that Faction prevail'd, that after the Members of the Houses had taken it, a Declaration was set forth by the House of Commons, that by those words The Doctrine of the Church of England, was intended only so far as it was opposite to Popery, and Popish innovations, and that the words were not to be extended to the maintenance of the Discipline and Government, &c. and so under this Explication and Declaration publish'd only by the House of Commons, and never assented to by the House of Peers, this Protestation was di­rected [Page 120] to be generally taken throughout England. And to that pur­pose a Bill is drawn, passed the House of Commons, and sent up to the House of Lords, who at the second Reading finding many particulars in it unfit to be so severely imposed upon the Subjects absolutely rejected.

You see here again an Instance of the Prudence of the great Consiliarii Na [...]i, His Majesty's great Councel, in not aiding the Faction against Prero­gative in that Point. For tho on the account of His Majesty's tacit Dispen­sation by way of Connivence presumed in that Conjuncture, many of the Loyal of the Church of England did take that Protestation and concur in the recommendation (His Majesty not having Prohibited the taking of it, as he did a [...]terward by a Proclamation forbid the taking of the Covenant) [...]et when it was visible that such an Interpretation so encroaching on the Church of England, and on Prerogative, was design'd without and against His Majesty's Approbation to be imposed on the People; it is not to be won­der'd that the Lords (as things then were) rejected a Bill of that Nature.

But it follows then in His Majesty's Declaration, Yet of this we took no notice, but pressed still the Disbanding of the Armies, &c. so that the ferment about the Protestation, and the trouble it gave the Kingdom by the Super-induced Interpretation, were in a short time over.


You having from the occasion given you by Queen Elizabeth's Power of interpreting, and by her dispensing with disability in all who took the Oath of Supremacy according to the sense notify'd in The Admonition, re­ferr'd my thoughts often to the Regal Power of interpreting, and having in the beginning of our Discourse this meeting, left it to me t [...] consider how much the Power of Dispensing with any Law may be thought [...]o-incident with interpreting, and promised me that you would some other time shew me 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, I shall be glad if before we part, you would do it.


I had rather do it at our next meeting. And if in the mean time you please to entertain your self with Bishop Taylor's Ductor Dubitantium, you will there find much learnedly writ of this subject. And he there in l. 3. c. 6. particularly tells us, that the Interpretation of Laws made by Iudges, is matter of Fidelity, and nothing of Empire and Power: and it is a good pro­bable warranty of Conscience, [...]ut no final Determination in case any doubt happen to oppose it. No man is to ask favour of the Iudge, but of the Prince he may. And he had before said, That when the Power that made the Law doth interpret it, the Interpretation is authentical and [...]bligeth Conscience as much as the Law, and can release the Bond of Conscience as far forth as the Interpretation extends, as if the Law were abrogated, and that whether it be by declaring the meaning of the Law, or by abating the rigour, or by dis­pensing in the Case, or enlarging the Favour, or restraining the Severity, it is all one as to the event of the Obligation of Conscience.


But it seems then that he makes the declaring or interpreting the meaning of a Law, and dispensing to be different things.


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.

[Page 121]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 jus (que) 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 [Page 122] 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) 'tis agreed on by all that Dispensation is an Act of Iurisdiction: but 'tis drawn into the Law to signifie the taking away the vinculum of the Law in particular Cases, and so we generally use it.


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.


I shall sometime at our meeting again observe to you what the Bishop hath there asserted, l. 3. c. 3. that Kings have a Legislative Power in the Affairs of Religion and the Church, and where he saith, that the LEAST part of this Power is to permit the free exercise of it, and to remove all Im­pediments, and to give it Advantages of free Assemblies, and Competent maintenance, and Publick Encouragements, &c. And shall then shew you what Power Circa Sacra the Church of England with great Prudence and Justice allow'd our Princes in the introducing the Reformation, (and which its Constitutions and Canons have since owned) and from the allowance of which Power, our great Church-men then knew there could be vestigia nulla retrorsum in the Case of a Prince of any other Religion coming to the Crown.

But I shall at present tell you that as to what I have mention'd to you out of Suarez and that Bishop, altho you need neither now nor at any time to charge your memory with the subtlety of Distinctions, and of the Pro­priè and minus Propriè when you are in eager pursuit of the substance of things; you will find in both those Authors what is very substantial about the Doctrine of Dispensing: and what I have cited of their rendring Dis­pensing and Interpreting thus Co-incident is à propos, and may mind you of Princes being both empow'red and obliged in Justice in their administra­tion of the executive Power of their Laws to declare or interpret their Reli­gionary Penal Laws as dispensable in relation to particular times and Persons. And you may therefore here call to mind that passage in the Council of Trent, viz. That on Fryar Adrian's vociferating there about the Pope's dispensing [Page 123] being an Arbitrary favour, Verdune the famous French Divine took him down with saying, that it is a fond Perswasion that Dispensing is a mere favour: for it is as good distribute Iustice as what is most so. And the Priest sins if he giveth it not; for it is nothing else but a right Interpretation of Law. You may very well suppose that thoughts arising from those words in the Ordination of Bishops, viz. That you have your Authority not to destroy, but to save: not to hurt, but to help, &c. to be so merciful, as not to be remiss: so to administer Discipline, as not to forget Mercy, &c. have formerly inclined our Bishops in the Reigns of King Iames and King Charles the First to think themselves obliged to interpret and declare the Laws about Church disci­pline as dispensable, and to dispense with them in the Cases of Mr. Hilder­sham and Mr. Dod, as I told you at our last meeting. And can you here see an Act of Parliament that thus s [...]tleth the Ordination of Bishops, and which Act not only allows but requires them thus to Interpretari & dispen­sare in lege, or in an Act of Parliament; and fancy it possible for the King (when as the Act of 37o H. 8. tells you that Archbishops, Bishops, Arch­deacons and other Ecclesiastical Persons have no manner of Iurisdiction Ecclesiastical, but by, under, and from His Royal Majesty) not to be em­pow'red to exercise such Jurisdiction?

And I may here add, that when it is declared in the Statute of 1o Eliz. c. 2. that the Queen's Majesty may orda [...] such further Ceremonies and Rites as may be most for the advancement of God's Glory, &c. will any one wonder at the Crowns relaxing the Penal Laws about Rites and Cere­monies in the Case of particular Persons; and as Edward the 6th (as is known) did in the Case of Bishop Hooper? And if you have a mind to see an Act of Parliament, that not only approves the Prince's remitting of his Penal Laws, but what applauds some excess in so doing, I can for that purpose direct you to the Act of 1o Edw. 6. c. 12. in the beginning of which 'tis said, Nothing being more Godly, more sure, more to be wish'd and desired between a Prince the Supreme Head and Ruler, and the Sub­jects, whose Governor and Head he is, then on the Prince's part, great Clemency and Indulgency, and rather too much indulgency and remission of his Royal Power and just Punishment, then exact Severity and Iustice to be shew'd, &c.

But as when we were near the end of our former Conference, you rightly observ'd that many perverse People would be crying out that any lawful Dispensing with the Laws establish'd, was Contradictio in adjecto, so I shall now observe to you that any who to the diminishing from a Prince's Cha­racter of being just, presume to insinuate it that a Prince's valuing himself on that Character, and yet shewing mercy to some in releasing them from the Bonds and Penalties of some of his Laws, is a Contradiction, do appear to me great objects of Compassion in so erring. And for this I shall refer you to the Happy future State of England, where in p. 233. 'tis said that He who separates Mercy from Iustice, is unjust to the very name of Iustice, and robbeth it of the better half of its signification, leaving its teeth and claws, and taking away its heart and bowels. Jarchas the Indian, and Chief of the Brachmans in Philostratus is brought in finding fault with Apollonius Ty­aneus and others of the Greeks, for that they confined and apply'd the word [...] to those only who do no wrong to one another, and telling them that they were in an error, for saith he among the Chiefest Offices of Iustice [...] and [...] together with [...] ought to be reckon'd up. And [...] and [...] just and kind men are convertible terms in Aristo­phanes, and joyn'd both together in Plutarch: and Aristotle saith, [...], Moderation or Clemency is [...]: a piece of justice better then all justice.

[Page 124]And you will find Mr. Gregory there cited for relating it in his Opus [...]. That the Mahumetans have another Lord's Prayer, call'd by them the Prayer of Jesus the Son of Mary, and that endeth thus, And let not such a one bear rule over me that will have no Mercy on me, for thy Mercies sake, O thou most merciful.


I say Amen to that Petition; and do at the same time pay my thanks to Heaven for that one doth bear rule over me, in whose great Genius Iustice and Mercy do appear to the World as the same thing: and whose Iustice when ever any one shall come to Paint in Story, he will not need to do it in the way of a half-face to hide any defect of Mercy: and wherein if any Prince be deficient, his Historian will be put to do it in the way I mention'd; and as Pliny tells us, Appelles drawing the Face of a King who had but one Eye, and intending to conceal that defect, was put upon the Painting him turning his Visage a little away, and so shewing but the one side of his Face: and from whence Pliny makes the Invention of that way of Painting to have come.

But as I have now represented Iustice and Mercy to you to be the same thing, so at some other meeting I shall shew you that Dispensation and Mercy are the same: And in the mean while I shall tell you that there was a time namely throughout the Reign of Queen Elizabeth, and in part of the Reign of King Iames the First, when the Learning about Dispensations was not in England, Dark learning, but generally understood, and that not only by the Writers of the Church of England, but by the Puritan Writers: and I shall shew you when this learning went to sleep, and which I account not to have been again awaken'd till in the Conjuncture of Thomas and Sorrel's Case. But when I come to entertain you with the learned Notions about it out of some of our Church of England-Writers, I believe you will not in the least startle at the thoughts of your Prince's dispensing with disability.

One of those Writers writ of the Subject before Suarez, and whose Book I suppose that our Excellent Bishop Taylor happen'd not to have read, be­cause I met with no references to it in his Ductor dubitantium, and where probably there had been many, had the Bishop read it. The Book speaks the Author to have been profoundly knowing in the Civil and Canon Law, and not unacquainted with the Lex terrae, and one who (I think) made a great figure in the Administration of the Discipline of the Church of England, and whose great talents might probably cause our great Church­men then to engage him for their Champion against some of the Puritan Writers, who look'd with an evil eye on the Regal dispensing with disabi­lity or incapacity in many of our Clergy-men. And as when of old some of the English-understandings were employ'd in the writing of School-Divinity, they penetrated as far into the Subtleties of it as those of any Nation, so I may tell you that (in my poor opinion) that Author hath writ of the Learn­ing of Dispensations both with all the subtlety and solidity requisite, and more substantially then Suarez. I shall lay the Book before you at our next meeting, but shall now tell you, that as to some Points we have been discoursing, he observes that There is a Dispensation call'd of Iustice, as it were, an Interpretation or Declaration of the true meaning of the Law juxta aequum & bonum: and he cites the Canon Law to prove that Dispensation is a due, for that the Precept of Mercy is common to all. And I may tell you here, that if you will look on your Durand's Speculum in his first Volume, where he writes so copiously of Dispensing, his style is, Dispensatio sive mi­sericordia.


You have taken care enough to make my entertainment in this meeting end with an appetite for another; and the rather for that nothing [Page 125] is more pleasant to me then to find an Historical account of the Progress of any Controverted Point of any learning that hath made a ferment in Church or State. And tho as the course of Providence hath made the knowledge of this learning to be the opus diei, and so the Ignorance of some, and Malice of others hath made it look'd on as angry work, and as frightful as a Comet, and as odious as if it were to bring us under a torrid Zone▪ yet (I think) your having surrounded the Nature of Dispensation, with such mild and gentle Rays as to represent it to be of the nature of the Sol justitiae with healing in its wings, must needs engage the knowing to bid it welcom with a [...], and make all their animosities and ferments about it to be soon over.


Truly I do not suppose that any knowing man can have an aver­sion against it, and that this Learning non habet inimicum nisi ignorantem.

And that you may continue in your judgment of any ferment about the Dispensative Power being soon over, I can refer you to another Iudgment of Parliament, wherein a great tenderness for this branch of Prerogative is shewn, namely in the Statute of Octavo Elizabethae, c. 6. and to which that Excellent and Learned Person, and great Ornament of the Law, Sir Ro­bert Atkins (as you will find it in Keble, Vol. 3.) referring in his Argu­ment in Chomas and Sortell's Case saith, 8. Eliz. cap. 6. takes notice of Licence to dispense with such Laws as were pro bono publico; yet doth not forbid it, but rather compounds the matter.

It hath been the luck of Dispensation to meet with an ill name from some of our famous Writers, who tell us that there were no such things as Dispen­sation or Non-obstante heard of till they came from Rome here in the year of our Lord 1240. and that afterward Kings learn'd from Popes to dispense with their Laws, whereas before they caus'd their Laws to be observ'd like those of the Medes and Persians; as the Irish Reports tell you in the Case of Com­mendams, and whereupon Mr. Prynne on the Fourth Part of the Institutes, c. 22. treating largely of Non-obstantes calls them Papal Engines. And our old Monkish Writers have been quoted for bestowing the terms of legum vul­nera, infames nuncii, and repagalum, &c. on Dispensations and Non­obstantes.

But I shall at our meeting again shew you that the practice of Dispen­sing may easily be traced to the Imperial Laws: and this you may soon find, if you will look on Dr. Donne's Pseudo-Martyr that you have by you, and where you may guess at the age of Dispensations, by his referring you in p. 40. to the Divinae Indulgentiae, in the Digests, and his telling you out of the Code that Theodosius and Valentinian making a Law with a Non-obstante did praeclude all Dispensations which the Emperors themselves might grant, in these words, Si coeleste proferatur oraculum, aut divina pragmatica Sanctio.

And if you will look on Gothofred's Notes on the L. Iubemus. C. De Sa­crosanctis Ecclefiis & de rebus & Privilegiis earum, cited by the Doctor there, you will thus find it in those Notes: Caeleste oraculum quid est? Principis dispensatio.

There is another thing I have not had time now to Discourse with you about, and that is of the Nature of Laws in terrorem, as I intended, and which suitably to the Wisdom of a Father in menacing a Child with cut­ting off his Head if he doth this or that thing, are by the Pater Patriae and the Estates of the Realm sometimes lawfully made to intimidate men grown childish and vain, by Sanctions of Punishments not intended to be execu­ted according to the general tenour of such Laws. But as what may make for my purpose of shewing you how worthy it is of the Majesty of Princes [Page 126] to incorporate Mercy with Iustice in dispensing with many particular Per­sons, and even to the freeing them from the terror of those Laws in some angry Conjunctures when others were to be affrighted with them, I shall refer you to King Iames his Proclamation of Iune the 10th, in the year 1606. and where having mentioned the Religion of the Roman-Catholicks, he saith, We de [...]ïre still to make it appear in the whole Course of of our Government, that we are far from accounting all those Subjects Dis [...]oyal that are that way affected, and that we do DISTINGUISH of such as be carry'd only with blind zeal, and such as sin out of Pre­sumption, &c. and therefore as after times must give us tryal of ALL mens behaviour, so must all men expect that their own deserts must be the only measure of their Fortunes at our hands either one way or other: and having before spoke of the Gun-Powder Treason, and the Doctrines of some Priests that might encourage it, and said that thereby there is suffi­cient Cause to justifie the Proceedings of us and our said Parliament in the making and execution of these last and all other former Statutes tending to the same end, it followeth, nevertheless seeing the Soveraign Care ap­pertains to us who have the Soveraign Power of Iustice in our hand, and the Supreme Dispensation of Clemency and Moderation of the Severity of our Laws is likewise as proper to us to use, whensoever we shall find it reasonable, the same deserving to be no less allow'd in us (being in our Dominions God's Lieutenant) then it is prais'd in him among whose highest titles it is that his Mercy is above all his Works, &c.

The King in the beginning of his Proclamation having profess'd his Zeal for the Religion of the Church of England by Law Establish'd, and his constant Resolution for the maintenance and defence thereof, said, Of which our purpose and determination, beside all other our former pro­ceedings (since our Entry into this Kingdom) we have given a new and certain Demonstration by such two Acts as have been passed in this Session of our Parliament, both tending to prevent the Dangers and diminish the number of those who adhering to the Profession of the Church of Rome, are blindly led (together with the Superstition of their Religion) both into some points of Doctrine which cannot consist with the Loyalty of Subjects toward their Prince, and oft-times into direct actions of Conspiracies and Conjurations against the State where­in they live, as hath most notoriously appear'd by the late most horrible and almost incredible Conjuration, &c. The two Acts there referr'd to are those that you will find in your Statute-Book, Anno tertio Jacobi Regis, cap. 4. An Act for the Discovering and repressing Popish Recusants (and in which the Oath of Allegiance is contain'd) and Cap. 5. An Act to prevent and avoid dangers by Popish Recusants, and whereby Popish Recusants Con­vict are disabled from bearing Office. But here you see how that wise Prince so soon after so horrid a real Plot did by distinguishing in his Procla­mation between the Principles of some Roman-Catholicks and others as to Loyalty, and alluring the Loyal by the avow'd Dispensative Power of his Mercy, and hiding them under the wings of his Mercy from the terror of his Laws and affording to all his Subjects who should afterward behave themselves well, a Tabula post naufragium as to the expectance of making up their fortunes, think himself obliged then to cause his Moderation to be known to all men.

And you may hence take occasion when you think of the many Acts in terrorem in the Statute-Book, and where there is no Proportion between the Crime and the Punishment, and in some that seem inflictive of Punish­ments [Page 127] in the Case where men cannot be to any but the Searcher of hearts known to be Criminal at all (as for example in their owning some Proble­matick Points of the Christian Religion) to consider that most probably the Wisdom of the Government would not have pass'd them but on the Suppo [...]i­tion of the Regal Power of dispensing therein, expresly or tacitly. You see how the Laws commonly call'd Sang [...]inary, have been tacitly suspended: and I may tell you, that tho I desire to live no longer then I shall be a maintainet of the internal Communion due from all Christians to all Chri­stians as a part of that Holiness without which no man shall see God; yet I should soon withdraw from the external Communion of the Church of Eng­land, if it own'd the justness of such Laws otherwise then as in terrorem [...] and if it owned the lawfulness of putting men to Death for the Profession of any Religionary Principles, their liberty to prosess which was purchased for them by the Blood of their Redeemer. But I need not say more now about cautioning you or any one against the taking offence at any of our Laws, Laws, through want of considering which of them were designedly made for terror.

I might here likewise as to many Acts about Trade that swell the Statute­Book apply the Consideration of the Regal Power of dispensing therein ha­ving encouraged our Ancestors to perpetuate them as Laws.


The truth is you now put me in mind how I having long ago spent much time in considering the Trade and Traffick of our Country, and of other Parts of Christendom, and finding that shortly after His late Majesty's Restoration, one of his Ministers had in a Publick Speech intimated it to the Parliament, that His Majesty had setled a Councel of Trade, consisting of some of the Lords of his Privy Councel, and of some Gentlemen of Quality and Experience, and of some Principal Merchants of the Principal Companies, I had the curiosity to look over their Iournals and their Advices, and Reports to the King, and there I found somewhat of the same notion with yours in one of their Reports to His Majesty. For there in one of their Papers of Advice addressed to the King, taking notice that what they conceived fit to be done for the advancement of the Trade of the Realm, was Prohibited by divers ancient Statutes, they make them imply that the thing might be done by the King's licence or dispensing, and whereupon they thus go on: And therefore finding this Dispensation to be your Majesty's Prerogative preserv'd entire to the Crown through so many of your Royal Progenitors, we have not thought fit to touch further upon this Matter, as being humbly confident that your Majesty's Subjects shall upon all occasions be indulged the like, if not more ready relief and accommodation for their Trade from your Majesty's Royal Grace and Bounty: only because the Observation was obvious, that perhaps all former Parliaments purposely left this door open to the People by the Grace of the King to be reliev'd with those dispensations, as foreseeing how difficult, if not impossi­ble, or how inconvenient at least it might be altogether to restrain what those Statutes prohibited, we could not omit the same in this place, &c.


And you have put me in mind how a very Loyal and judicious Gen­tleman of that Councel of Trade, (and whom I look on to be as deeply study'd in the business of Trade and Traffick as any one of the age) was pleas'd once to give me his opinion in Discourse, that a vast number of our Statutes made for the advancement of Trade did really depress it; and he then told me, that the making of one new Law against the giving Alms to Beggars in the High-way, would enrich the Nation almost more then all our old Statutes.


I have many times been apt to think so. And considering how great a part of Mankind every where the Credulous are, and that the Beggars [Page 128] are a necessary Tax upon the Credulous; as we must imagine that a great loss happens to the well-meaning People in the Nation through the Profu­sion of their Charity to Pa [...]pers in the High ways or Streets, so again con­sidering the vast numbers▪ of such Pa [...]pers, and how valuable their Industry would be to the Publick, if Necessity the mother of Industry through their not being relieved in the High-ways or Streets made them advantageous to the Kingdom instead of being Nuisances to it, one may easily guess that an Act of Parliament of that Nature would awaken Trade and Manufacture to a much higher Proportion than our many sleeping Statutes can do.


Why, then; I must tell you what I told him, namely, that there is such a Statute in being, and long ago made, and that the execution of this Statute hath been in the populous Suburbs of our Metropolis (the places where Peggars do so much swarm) often awaken'd within these late years by the Middlesex-Iustices causing Printed Papers to be sent to the Church­wardens and Overseers of the Poor in the respective Parishes, and with this Clause therein inserted, viz. And for the discouragement of all idle Vagabonds and Vagrants, &c. all Persons are hereby desired and required to forbear to relieve any Beggars at their doors, or in any other kind about the Streets, on pain of suffering the respective Penalties by Law provided against all such Offenders.


I never before heard of this Penal Law.


You may find it referr'd to, and likewise what may shew you how it hath been tacitly dispensed with, in my Lord Hatton's Treatise of Acts of Parliament and the Exposition thereof, c. 5. Of Interpretation of Statutes by Equity: and where he saith, The Statute of E. 3. ordaineth, That no ma [...] upon pain of Imprisonment should give Alms to a valtant Beggar. Yet if one meet with such a one in so cold weather and so light apparel, that if he have no Clothes given him he shall die before he comes to any Town, if a man giveth him apparel, he offends not the Law. For there is an inward dispensation by the bond of Christian Charity and Compassion.

But since humane Laws bind the Conscience, we cannot without the Prin­ce's tacit Consent rationally to be presumed, thus give our selves the Latitude of an internal dispensation, or relaxation from the band of that his Law: So that therefore when ever you gratifie your own indulgent disposition in relieving one in the Streets, or in itinere whom you look on as one of God's Poor, you are at the same time to be sensible of the Regal dispensative Power relieving your Conscience, and legitimating that your intended Charity by Tacit Dispensation.


You have often referr'd my Thoughts to consider the Nature of the Prince's Tacit dispensing. Do you account it to have any great spreading Influence on mens Consciences here in keeping them both innocent and quiet?


When we meet some other time, I shall shew you the Universal in­fluence of this kind it hath among all Orders and Degrees of our Prince's Sub­jects: and I shall then give you a full view of it.


But will you then tell me of Disability being thus tacitly dispens'd with, and with a salvo to Conscience as to the obligation of humane Laws?


Yes; in many Cases. I have told you of one already when the Roman-Catholick Physicians were disabled by an Act of Parliament in the Reign of King Iames the First from Practising, and when the Regal Tacit Dispensa­tion proved an effectual Antidote to their Consciences against mortal Sin in the Case. But because you seem to be somewhat impatient to know ano­ther Case wherein the Tacit Dispensation with disability did thus operate, I shall give you a home-case, by desiring you to recollect how old you were [Page 129] when you were first chosen a Parliament man, and then to read Mr. Prynne's Book publish'd A. 1661. and call'd Minors no Senators, or a brief Discourse proving Infants under 21 years to be uncapable in point of Law, &c. of being elected or admitted Members of the High Court of Parliament, &c. He re­fers there to Coke's Institutes for rendring none eligible to be a Knight, Citi­zen or Burgess, who is under the age of 21 years: and in p. 5. he faith, the Common Law of England is so exact and curious in the Election of all Officers of an inferior Nature, as Coroners, Verderers, Keepers of Seals for Recogni­sances, or Statutes Merchant, Constables, Bailiffs, Mayors, Clerks and others, who are eligible by Writs, Charters or Prescription, that it expresly requires every one of them to be idoneum hominem qui melius sciat & possit officium illud intendere, and therefore (saith he) much less ought a Minor to be cho­sen a Knight, Citizen, or Burgess, &c. and if he is unable to be an Attorney or Proxy to assent for another in any Court of Iustice, much more then in a Parliament, the supremest Court. And in p. 24. to the Objection that some Infants under 21 years have been permitted to sit in former Parliaments, he answers, that no [...]e ever sate in former Parliaments but only by Connivence, and whose Elections were never question'd, and that some whose Elections were question'd, were ejected.

And now as Bishop Sanderson in his 7th Lecture, viz. De Legum humana­rum Causâ efficiente, speaking of Laws ceasing to oblige by contrary Custom, makes that contrary Custom to be nihil aliud quam Conjuncta populi Consen­sio eam legem ut inutilem observare negligentis, & Consensio principis Obser­vationem ejus non exigentis; and in his 10th Lecture doth very judiciously distinguish the Prince's Consent about relaxing Subjects from the obligation of a Law into that which is express'd, and that which may rationally be pre­sumed, it was by this latter consent of your Prince so exuberantly indul­gent in his Nature, that you were brought off from Sin in the forum inter­num, when you were both Senator and Minor, and when you help'd on the making of Laws to disalle others, and who have since made it a question whether the King could expresly or tacitly dispense with the incapacity that by means of your Vote, and perhaps of other Minors, passed to be enacted as a Punishment.

But to speak frankly, you will oblige me now we are so near parting, to tell me of any one learned Man in the Profession of the Laws of any part of Christendom, and particularly of our own Municipal ones, who hath ex Professo and argumentatively writ of the Prince's Prerogative of dispensing with a Penal disability in particular Cases, and deny'd it.


I did not as to our Lex terrae account it tanti to set up the Judgment of any one particular man when you have entertain'd me with Iudgment of Parliament in the Case. But I am sure you cannot but know how that great Man in that great Case we have referr'd to, I mean my Lord Chief Justice Vaughan in Thomas and Sorrel's Case, seems to be of opinion that the King cannot dispense in the Case of Incapacity: He saith, the reason why the King cannot dispense in the Cases of buying Offices and Simoniacal Presenta­tions is because the Persons were made incapable to hold them: And a Person incapable is as a dead Person, and no Person at all as to that wherein he is in­capable, &c.


Tho that great Man hath not therein as in other Passages in his Ar­gument, discuss'd the Point argumentatively, I shall yet pay so much respect to his opinion, as to give decent Burial to his dead Man. But you see that after he had said, The Reason why the King cannot dispense, &c. is because the Persons were made incapable to hold them, he only gives it as a reason of their being uncapable, and of the King's not being able to dispense in their [Page 130] Case, viz. that they are dead Men, that a Person uncapable is as a dead Per­son, and whereby he giveth us a Magisterial gratis dictum, or a Petitio Principii instead of what might deserve the name of a Reason, or what might prove that the King could not dispense in the Case of one Politically dead, or one dead in Law. I have formerly told you of the Saying used by Magerus, and other Civil Law-writers, that Mors civilis naturali non aequi­paratur nisi in casibus in jure expressis. And there are Cases enow express'd there, that shew how the Prince who is according to the style of Seneca, viz. Animus Reipublicae, illa Corpus suum, and ille spiritus vitalis quem haec tot millia trahunt, and who in the Scripture Phrase is the breath of our No­strils, can according to the Law of the Land as I told you in the Case of Sir Walter Raleigh, animate a Person dead in Law.

And none need question why King Iames the Second cannot thus raise the dead as Queen Elizabeth did, and King Iames the First, or our following Princes, and I may say as well as any who went before him. Infames di­cuntur civiliter mortui is a common Saying, but you see that Fas est cuivis Principi maculosas notas vitiatae opinionis abstergere is as common. Thus too Magerus tells us, that Banniti pro mortuis reputantur, and we know that the Excommunicate may in some respect by reason of their temporary disa­bility be termed so too.

And if you will look on the Book call'd Reformatio legum Ecclesiasticarum, under the title De excommunicatione, you will there in the Chapter of the Denunciation of the Excommunicate, find the Minister enjoin'd to tell the People that they must all abstain from the Excommunicate Person, tan­quam à Putri & Projecto membro, &c. that an Excommunicate Person is to be thrown out of the Church as a dead Carcass: but you will there find in the Formula reconciliationis excommunicatorum with what tenderness it is said reum hunc charissimum fratrem membrum assumamus & agnoscamus Communis in Christo nostri corporis: & intimus ut no­ster affectus in hoc corporis nostri recuperato membro testatior sit, &c. and that the Pastor in the Absolution of that returning Prodigal who was dead and is alive again, must in the administration of the King's Ecclesiastical Laws, say tibi rursus pristinum in Ecclesiâ tuâ locum, & plenum jus restitue.

Thus too at the end of the Canons, A. 1571. you will find the same style of tenderness in Vogue in Queen Elizabeth's time that was in Edward the 6th's, as likewise of the powerfulness in raising the dead. You see there a Form of the Sentence of Excommunication, viz. Fratres quoniam quicunque profitemur nomen Christi sumus omnes membrum ejusdem corporis, & par est ut unum membrum alterius membri sensu & dolore afficiatur, &c. And it being afterward mention'd, that the Person having been accused of such a Crime, and having been contumaciously absent, it followeth, the Bishop in God's Name and by his Authority hath Excommunicated such a one from the Socie­ty of Christ's Church, & tanquam membrum emortuum amputasse à Christi corpore, &c. that you may shun his Company: tamen ut Christiana charitas nos monet, let us pray for him to God who is a merciful God, and who can lapsos etiam à morte revocare.

And you may take notice of what is said in Croke 2d, and Coke 8th Report, Trollop's Case about the King's Pardon raising the Excommunicate from this civil death, and that a man need not be Absolved by the Church if the King Pardons. And thus Hobart, Serle's Case, p. 294. shews you that after the discharge of a Clerk Convict, he shall never be question'd in the Ec­clesiastical Court for deprivation. You may likewise see it in Coke Inst. 3. Chapter Of Pardons, The King may Pardon one Convict of Heresie, or of any other offence Punishable by the Ecclesiastical Law.

[Page 131]You may too in that Chapter observe his tenderness for Prerogative, where having mention'd that by the 13th of R. 2. it is provided that no Charter of Pardon for Murther, &c. shall be allow'd &c. if they be not spe­cify'd in the same Charter, and that before that Statute by the Pardon of all Felonies, Treason was Pardon'd, and so was Murder; and at this day by the pardon of all Felonies, the death of a Man is not pardon'd; he thus goeth on, these are excellent Laws for direction, and for the Peace of the Realm. But it hath been conceiv'd (which we will not question) that the King may DIS­PENSE with these Laws by a Non-obstante, be it general or special (albeit we find not any such Clauses of Non-obstante but of late times) These Statutes are excellent Instructions for a Religious and Prudent King to follow, but he doth not make them obligatory to him. My Lord Coke then saith, This is to be added that the intention of the said Act, 13. R. 2. was not that the King should grant a Pardon of Murther by express Name in the Charter, but because the whole Parliament conceiv'd that he would never Pardon Murther by special Name for the Causes aforesaid, therefore was that Provision made which was grounded on the Law of God, Quicunque effuderit humanum Sanguinem, fundetur Sanguis illius, &c. Nec aliter expiari potest, nisi per ejus Sanguinem qui alterius Sanguinem effuderit. His Margin there cites Genes. 9. 6. Numb. 35. 33.


But (by the way) do you think then that Sovereign Princes offend the Law of God in Pardoning Murther?


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.


I shall be glad to hear you discourse of this, and the rather for that 'tis 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.

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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 The [...] 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.


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 [Page 133] 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 quell'd by Prerogative. Can you guess whence it is that men have imbibed this mistaken fancy?


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.


You will then make a happy riddance of the vexata quaestio of disa­bility, if you have not done it already.


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 [Page 134] 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 Vict [...]ry and I the Truth.


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 le [...]t some great words in it that relate to no Foreign Prince or [...] 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.


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 37o 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 impeach [...]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 [Page 135] 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 o [...] 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 [Page 136] 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 Ca [...]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 [...]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 13o 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 Interpretation as good as Queen Eli­zabeth's, so you may account that in the Canons of King Charles the First, as good as that in those of King Iames; for that tho it is said by some that the Canons of King Charles the First were damned by the Act of 13o Car. 2. c. 12. yet the truth is, that that Act leaves them in statu quo, and the last Proviso in it doth only express those Canons not being confirm'd by it. Nor (in my judgment) did they need any Confirmation from it: for that (accor­ding to my Lord Chief Justice Vaughan's Opinion that I have cited to you) a lawful Canon is the Law of the Kingdom as well as an Act of Parliament: and the Consideration of this may shew you, that as Queen Elizabeth's Inter­pretation in The Admonition was perpetuated by the Ensuing Parliamentary Approbation thereof, so the interpretations of those Princes in those their Canons confirm'd for them, their Heirs and Successors, are now binding to you; and I pray God to incline you to keep this your Solemn Oath according to these interpretations of it.


I thank you for this your serious and Christian wish, and do give you my hearty thanks for what you have discours'd to me of the many Inter­pretations relating to the Oath, and the rendring them so consistent with it, and by means whereof I am sensible that the Oath hath become more then res unius oetatis, and that without them it would not have been so much: and by which both the credit of the Oath, and the quiet of the Consciences of the Takers of it have been preserv'd. And I am glad that the task of enumerating them all hath happen'd thus to fall into your hands, and that [Page 137] therein you have not (as they say of young Conjurers raising Spirits that they cannot lay) occasion'd any doubts in me about the Oath but what you have fairly [...] and fully satisfy'd. And indeed you have laid some doubts that the Two Roman-Catholick Writers raising them, happen'd not to lay. Throwing therefore by, any Thoughts and Expressions of mine of that nature which you censured as airy (and as to which I submit to your reproof) I shall prepare my mind with a decent temper both of delight and Pious dread to contemplate my Oath as now set before me, and as containing in it that clearness, and that Majesty that may excite both those Passions in me, and the real view of which I may some way compare to that in vision, Ezekiel's terrible crystal.


Long may you live in this temper. I remember I have somewhere read it, that the Oath by which the Cardinals are bound to the maintenance of the Church-Privileges is drawn in such clear and powerful words, that Baronius calls it terribile Iuramentum, and saith, that the only remembring of it inflicts a horror upon his Mind, and a trembling upon [...] Body. And I doubt not but when I shall at our next meeting discourse with you about our obligation from the Promissory part of the Oath that relates to the assi­stance and defence of the Regal Rights and Privileges, you will think that every Taker of it, ought to have some such sense of his remembring it, as Baronius had about his terrible Oath.


But to go on according to the freedom you gave me, I remember you told me that you would not trouble me with any Notions or Moot Points about the Power of Interpreting Acts of Parliament, and about which you cited Sir Christopher Hatton's Book Of Acts of Parliament and their Expo­sition: but I remember you have Sparsim variously spoke of it, and you mention'd to me what King Charles the First told both Houses shortly af­ter the granting the Petition of Right, that to the Iudges only under him the Interpretation of the Laws belong'd, and that none of the Houses of Parlia­ment, joint or separate either could make or declare a Law without his Consent. I suppose you intend here to lodge no Snake in the grass of this Regal Power of interpretation, whereby we may be interpreted out of our Magna Charta and the Petition of Right, and out of our Religion, or Property.


Your Supposal doth but right to my intentions. I have referr'd you only to Facts, and leave you to make a due use of them, and shall when we meet again shew you further why I have thus referr'd you to these Facts of the Regal interpretation: And in the mean time you may take notice, that as to what I have mentioned as a Notion out of the Lord Chancellor Hatton, (of which the intent and substance was, That if all the Parliament were voluntarily assembled again and not by Writ, Eorum non esset interpre­tari dubium Statutum, as the words are in the Table of his Book, Chap. 4▪ and with which the Chapter agrees) I told you I would not trouble you with it, and you may give it its transeat as a kind of curious impossible Case. Nor need you amuse your self about any Consequences by me meant in what I told you of King Charles the First, telling the three Estates as they were feasting themselves with the noble Concessions of the Petition of Right. I know nothing asserted by my Lord Coke in Inst. 4▪ Chap. 1. Of the High and Honourable Court of Parliament, but wherein I own my agreeing with him, and particularly as to what he speaks of Iudicature. And I doubt not but every one accounts that what he said Inst. 3. c. 73. was very Orthodox, viz. NOTE, Proclamations are of great force, which are grounded upon the Laws of the Realm. Nor considering the exuberance of that great thing call'd bona fides that is to be expected from Princes, need any man fear that there [Page 138] will be an Exposition of abrogamus for statuimus in any of the Declaratory Proclamations that ours shall make.

But because you have named Magna Charta, and the Petition of Right, I shall take occasion to cite to you a very popular Authority to shew you that any Proclamations our English Monarchs shall make for the Dispensing with Penal Religionary Laws, will be but Declaratory of Magna Charta, and of the Petition of Right. You know we have often spoke of the Arguments in the Parliament of 40. made by Mr. Bagshaw, who was Pars magna of the Faction then regnant, and by which those Arguments of his were much celebrated. You may find some account of his Character in Heylin's History of Arch­bishop Laud, who mentions his being chosen Reader for the Lent Vacation by the Middle-Temple in the year 1639. And he in his First Argument, viz. Concerning the Canons, p. 11. saith, Liberty of Religion and Conscience are (as I take it) within the words of MAGNA CHARTA granted to me as mine Inheritance, Cap. 29. Nullus liber homo imprisonetur [...]ut disseisetur de libertatibus vel liberis Consuetudinibus suis. And Liberty of Con­science is the g [...]test Liberty. It is by a necessary Consequence and deduction within the words imprisonetur. For put the Case that the Clergy make Ca­nons to which I never assented, and I break these Canons, whereupon I am Ex­communicated, and upon a Significavit by the Bishop, my Body is taken and imprison'd by a Writ de excommunicato Capiendo, now shall I lie in Prison all the days of my life, and shall never be deliver'd by a Cautione admittenda, unless I will come in and parere mandatis Ecclesiae, which are point blank against my Conscience. And he had before said, A Comparatis: by an Argu­ment à minori ad majus; if Property of Goods cannot be taken from me with­out my assent in Parliament, which is the fundamental Law of the Land, and so declared in the Petition of Right, why then Property and Liberty of Con­science which is much greater, as much as bona animi are above bona fortunae, cannot be taken from me without my assent.

This it seems pass'd as Currant Coin for Iudgment of Parliament in behalf of Liberty of Conscience, in the Conjuncture of 41, the year in which his Book was Printed: and if it were so then allowable, you may well think that a Prince's owning the Religion that flourish'd here in the time of Magna char­ta (and which inspired the Virtue that produced Magna Charta) and indulg­ing some others of the same Religion to profess it without Punishment, is not likely to occasion any durable ferment.

And what I have here referr'd to concerning the Petition of Right, minds me of the great effort of Pious zeal in our famous Bishop Hall, and his laudably making use of the Popularity he had among the Protestants in send­ing a Letter to the House of Commons, April the 28th, 1628. during the great ferment about that Petition, and in which he gives so much fatherly and Prudent advice to the great Agonists for Property, that they should consider when they were at the end of their race, and then to sit down and rest. He hath in it these tender Expressions, Gentlemen, For God's sake be wise in your well-meant zeal, and our Liberties and Proprieties are sufficient­ly declared to be sure and legal, &c. let us not in suspicion of Evils that may be cast our selves into present confusion. If you love your selves and your Country, remit something of your own terms. And since the Substance is yielded by your noble Patriots, stand not too rigorously upon Points of Circumstance. Pear not to trust a good King, who after the strict Laws made, must be trusted with the Execution, &c. relent or farewel welfare.

You may hence easily imagine how passionately that good Bishop would have been concerned if he had then seen among the Patriots any unquench­able heats about the not trusting the King with the Executive Power of [Page 139] Penal Laws, and Laws in terrorem, and such Laws as Mr. Glanvil in the 'Month after the Date of the Bishop's Letter, said in a full Committee of both Houses, That the Commons must and ever will acknowledge that it is in His Majesty's ABSOLUTE and undoubted Power to grant Dispensations in, as I told you.

In God's Name, often think of that great Patriotly saying of Tully so often with just Applause cited by Sir E. Coke, Major haereditas venit uni­cuique nostrum à jure & legibus quam à parentibus: and you may account him a Prophane Person who despiseth his Birth-right given him by the Law. And pity any one who speaking of his Property, doth not know this to be the meaning of it, namely that it is the highest Right he hath or can have to any thing, and which is no way depending upon another man's Court [...]e. And consider, that as you have a Property in your Chattels and Heredita­ments, so you have in your Religion.

Think often with honour of our Ancestors, who by so many Acts of Par­liament, and lawful Canons and Constitutions since the Refo [...]mation, provided for the securing your Property in your Religion; and remember how bind­ing the very declarative Laws about it are.

Cast your Eye with Pleasure about the Realm, and see if you can find any one who fears that any one will ever move in Parliament for leave to bring in any Bill to take away the least part of your Property in your Reli­gion. But then consider how Savage a thing it is in any to take excessive delight in the Execution of Penal Laws. Ferus est qui fruitur paenâ: and remember too that your Prince hath a Property in the Executive part of the Law, and in distributive Justice and in shewing Mercy. And when you hear any one telling you of a Snake in the grass of the Prince's dispensing with Penal Laws, and that therefore there may be danger of your Prince's dispen­sing in Laws that are leneficial; you may tell him of the notorious Non-sequi­tur, and that you have a Property in not being punish'd, and in having the benefit of the Rule as to favourable Statutes, being made more so by inter­pretation: Favores sunt [...]mpliandi, and on the contrary as to Penal ones that odiosa restringi convenit. And so to any such impertinent Objecter you may say that the voice or sound of his Snake, and the Goose are all one.

But consider that since you have so much cause to depend on the glorious and consummate justice inherent in the nature of our great Monarch for his defending you in the security of all the Declaratory Acts of Parliament that maintain your very Property in your Religion; both Iustice and Common Ingenuity call upon you to own his Power of Dispensing (and even with disa­bility) for which I have shewn you so many clear and incontestable decla­rative Iudgments of Parliament, and shall direct you to more when we meet again.

And let me tell you that you ought to have the greater tenderness for this Prerogative of our Prince; for that in his Administration of it, he hath in some Points shewn a greater tenderness to his Laws and People then our Princes since the Reformation have done. You may remember I shew'd you how Queen Elizabeth and King Iames did by their Authority out of Parliament MAKE things Penal by Disability that were not so by any Law in being, and therefore you may the less wonder when you see your Prince dispensing with it, and thereby preventing the Punishment of it, and sometimes and in some Cases pardoning it.


I shall carefully take notice of all these Matters wherein you have cau­tion'd me: but am here occasionally on the account of some things you said about the Interpretation and the Acquittal from Penalties in the Queen's Admonition being perpetuated by their being declared good in Parliament, [Page 140] to ask you if you do not account that Dispensations or such Interpretations of the Prince by his own single Authority, may be made to continue good in following Reigns?


I do not in the least doubt but they may; and I shall hereafter evince the thing to you: but shall at present out of a Manuscript Report I have of the great Case of Thomas and Sorrell, tell you that by one of the great Coun­cel who argued in it, it was asserted with great Learning, That the Non­obstante in that Case remain'd good after the King's death. That tho Acts the King doth in his Natural Capacity determine by his death, as making of Iudges, &c. (for those referr to his Natural Will) yet things done in his Royal Capacity as King, do not determine by his death: as a License to alien in Mort­m [...]in▪ in one King's time serves in anothers; and the Reason is when the Subject is once exempt out of the Restraint of the Act he is ever exempt, unless the Ex­emption be limited, Coke 1. Inst. 52. 6. If the Lessor licence his Lessee that is restrain'd, by Condition not to Alien, tho the Lessor die, the licence shall serve the Lessee to alien, and is not determin'd by the Lessor's death. And in this Point he cited Trin. 2. Jac. C. B. Rot. 2835. Wright versùs Radcliffe, and Trin. 2. Jac. Norris v. Mason. C. B. as Cases adjudged in this point.

And I shall then shew you how the same thing was then by others asserted: but you may now for this purpose remember how the instances I have given you of Queen Elizabeth's Parliaments approving and declaring to be good, what she did of this kind, and the instances of what others of our Princes did by their own Authority and out of Parliament being valid, and being afterward approved in Parliament, have supported the extent of the Regal Authority of this kind, as to point of time.

But because according to the Rule of Unumquodque dissolvitur eo modo quo colligatur, many Indulgences, and Injunctions and Dispensations being revocable by Kings themselves and by their Successors, and because declara­tory Acts of Parliament cannot be repeal'd but by other Acts, common Pru­dence doth suggest it to all to endeavour the perpetuating to themselves by the Legislative Power what they account beneficial. And if you will, you may use the term of having it confirm'd by that Power; that is, if you will allow it to have been firm before, you may call it confirm'd by the Prince, and the three Estates afterward enacting it, and making its firmness perpetual. And this is the thing I aim'd at in what you might take for a Criticism when I said, that the 39 Articles owed no Confirmation nor Authority to the Act of the 13th of Eliz.


I know the reason of your cautious speaking here about a tender Point. You accounting even every Declaratory Judgment of Parliament for our Religion to be a Treasure, and having often said that you would al­low some Roman-Catholicks to mock on in calling our Religion a Parliamen­tary Religion, did (I judge) design to do honour to our Religion as well as to our Prince's, in shewing that it was here orderly establish'd by God's Vicegerents, before it was by the Deputies of the People, or the Mag­nates Regni.


You guess right at my meaning in this way to salve Phaenomena. And if you will look on a Book Printed in Oxford, A. 1645. entituled Parlia­ments Power in Laws for Religion, or an Answer to that old and groundless Calumny of the Papists nick-naming the Religion of the Church of England by the name of a Parliamentary Religion, &c. you will find the Fact in this Point clearly deduced through the course of our Laws and Constitutions in a long series temporum from the Reign of Harry the 8th downward, and for the honour of our Kings and of the Church and the Reformation; and the measures I have taken in our discourse have been suitable to those of the judicious and learned Author of that Book.

[Page 141]

Well Sir: we have had a great deal of frank Discourse, and I will now take the freedom to put one Question more to you. You have entertain'd me with the several Interpretations of our Oath, and have shew'd me how the obligatoriness of them all hath been perpetuated: and you have like­wise▪ salved the Phaenomena in the Iustice of the Government as to the Laws in terrorem. But you know the Story of one who being Lord of a place did leave a Pit long open too near the High-way, and who at Night erected Lights about it to prevent its being mischievous: and he afterward, hear­ing that sometimes poor Blind men who were Travellers fell into it and that at other times by various accidents the Lights were not helpful to other Passengers, as being took away, or going out too soon; and he therefore at last very fairly removed both his Nuisance and Lights together. And now may it hot be wish'd that the Prince and the three Estates would remove the Laws about our Oaths and the Interpretations too, and so likewise all the Laws in terrorem, (among which I suppose you reckon the Test-Acts) at which so many have taken offence?


You may easily guess that till we have both of us at another meeting discours'd of the Obligation resulting from the Promissory part of the Oath, I will not engage your thoughts in any matter of Controverfie that may in the least perplex them. But as soon as we have fully discours'd that, I shall frankly give you my thoughts at large relating to the question about Repealing of the Test-Acts in a Parliamentary manner: but do at present wholly forbear to mention what I think thereof. And I have before told you my judg­ment of the likelihood of the continuance of our great Oath as a great lu­minary that may perhaps enlighten our English World in the measures of Loyalty to the end of time; and as I have told you the Oath giveth no offence to the Considerate, so I will hope none will be taken at it.

But I must here tell you, that I have a greater veneration for the Oath, because I look on the serious Consideration of the assertory part of it as likely to be very Instrumental in allaying the ferment we have been speaking of.


God grant it may be so.


You remember what I hinted to you about the Clause whereby you testify'd and declared that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal, (and from whence it follow'd by way of natural Consequence, that no foreign Prince, &c. hath any Iurisdiction within this Realm) being the Corner-stone on which the great And therefore, I mean, your for­saking foreign Iurisdiction was built. And I assure you that the same first Declaration doth bind you to the like AND THEREFORE to renounce the belief of any Power on Earth being able to dissolve your King's right of Commanding your Obedience, and your Obligation to obey him.

And indeed if I had produced to you no Iudgment of Parliament for the purpose I have done but that which is contain'd in the assertory part of the Oath, (and which is unanimously interpreted by Divines and Lawyers, as expressive of the King's right jure naturae to Command the Obedience of all his Subjects) it might have sufficiently satisfy'd you therein: and if at our next meeting you will have me dilate more on what our Lawyers have said about the Point of the debt of our Natural allegiance, I shall do it.


Our great Lawyers Judgments in that Point being known may be variously useful, and directive to the many illiterate and presumptuous Re­flecters on the exercise of Prerogative; and especially if so learned and so po­pular a Lawyer as Sir Edward Coke shall be by you further cited in such a Case. And so what you shall acquaint me with as from any such one of them shall be kindly welcome.

[Page 142]

What you have now said brings it into my mind how that Great po­pular Man Sir Edward Coke was cited for this purpose by that great popular Man Sir William Iones in his learned Argument in Thomas & Dorcel's Case, and where he did so much right to the DISPENSATIVE Power.


What? Did Sir William Iones maintain the King's Power of Dispen­sing with Acts of Parliament?


Yes, and (I believe) was never censured for so doing by any one.


I pray tell me what was said by him in his Argument.


Then according to the very Learned and Judicious and Candid Manu­script Report I have of the Case, thus it was, Among the three Points made, the first being if the Non-obstante in the Patent of King James was good against the Statute of Edw. 6. Jones agreed that the King may by Non-obstante dispense with a thing Prohibited by Statute if the thing were lawful before the Statute were made. And he afterward said, that a Dispensation to one and his Heirs was never good but only in that of a Sheriff. 2. H. 7. 6. Grant of a Shrievalty in fee Non-obstante the Statute. But Coke 7. R. 14. Calvin's Case; the Reason of that is because the King hath interest to have the Service of all his Subjects by the Law of Nature.

And the truth is, that on this noble and great Consideration it is that our Divines who have treated of the OATH of SUPREMACY have fix'd the reasonableness and intent of that Oath, and of the King's having a right to Command the Obedience of all his Subjects, upon the basis of the Law of Nature, as well as on the Divine Law Positive. And thus too the style of the Acts of Parliament about the Oath of Allegiance runs, and which Acts you may Consult if you want any more Iudgments of Parliament about the indissolubility of the King's right to Command the Obedience of the Sub­ject, and of the Subjects duty to obey, before we meet again. The reasona­bleness of the words in that Oath contain'd in the Statute of 3tio. Iacobi, viz. Of declaring that the Pope hath no Power to discharge any of his Ma­jesty's Subjects of their Obedience, appears from its being call'd in that Statute their Natural Obedience. And the putting in Practice the per­swading or withdrawing any of the King's Subjects from their Natural Obedience to his Majesty, or to reconcile them to the Pope or See of Rome is there made Treason. We will speak more of other Statutes of this nature at our next meeting.

And in the mean time let me observe to you how as in the Conjuncture of the Exclusion so many were infatuated as for fear of Popery to come, to run upon the very Court of Rome-Popery at present, namely that of Domi­nium fundatur in Gratiâ, so likewise many mens fear of the belief of per­haps some Religionary Tenets of Popery gaining ground for the future, hath hunted them upon the Popery of thinking that Subjects CAN in part, or in whole be discharged from their Natural Obedience to their Prince.


I thank you Sir, for suggesting that to me: for the truth is the tenet of thinking it lawful so to discharge Subjects from such their Natural Obe­dience, is the very odiosa materia charged by so many on the Councel of Lateran.


You say right. But however let me occasionally advise you not to charge the odious matter in that Councel on the Communion of the Church of Rome. For I shall tell you that the great Writers of our Church did after the real Plot of the Gun-Powder-Treason pursue such noble Methods of Christian Charity, as with an intent of improving the Principles of Loyalty and Allegiance among all our Roman-Catholick Countrymen, to endeavour to prove with all their Learning that the Decrees of that Coun­cel obliged no Papist in point of Conscience. King Iames in his Works [Page 143] calls it but a Pretended Councel, and Dr. Donne in his Pseudo-Martyr endea­vours to prove it no Councel.

Moreover Bishop Bilson in his learned Works for maintaining the Oath of Supremacy, saith that Nothing was Concluded in the Councel of Lateran. I have here on the Table his Book call'd, The Difference between Christian Subjection, and Un-christian Rebellion, Printed A. 1586, in which his Learned and Iudicious Assertions and Explications of the Regal Supremacy, and of our Moral Offices to defend the same are comprised: and there in Part 3. p. 6. you will find what he saith of the Lateran Councel.


I have not the Book, and shall be glad I may borrow it from you, that thereby I may have the better prospect of the Measures of our Divines in their Sense of the Assertory part of the Oath of Supremacy, as making the Rights of our Kings to Command the Services of all their Subjects, to be indissoluble.


I pray take it along with you. And I am the rather desirous you should do it, because in this Crooked and Perverse Generation many who strain their Consciences by the inobservance of the Oath, may be so vain as to fancy that others strain the Oath who endeavour (as I have done) to build the Right of our Kings to Command the Services of their Subjects, on its so firm Foundation. He was trusted by the Government to write on the Subject of the Oath, and so his Authority is of the more weight: and I shall here at parting read to you what he saith in Part 2. p. 183. where he so well insinuates it, that the Prince can freely permit, safely de­fend, generally restrain, and externally punish within the Realm: but in p. 328. having spoke of the true Supremacy of Princes, he saith, This is the Supre­macy which we attribute to Princes, that all Men within their Territories should obey their Laws, or abide their Pleasures, and that no man on Earth hath Authority to take their Swords from them by Iudicial Sentence, or Mar­tial Violence. And he there had before said in his Margin, the Sword of Princes is Supreme, in that it is not Subject to the Pope; and must be obey'd of all in things that are good. What he saith likewise in p. 346. there is worth your reading, where he makes the word Supreme to be a plain and manifest deduction out of the 13th of the Romans, Let every Soul be subject to the Superior Powers. If all Men must be subject to them, ergo they are Supe­rior to all: and Superior to all is Supreme. He then thus goeth on in his Dialogue-way, Phil▪ S. Paul maketh them Superiors over all Persons, but not over all things. Theop. That Distinction is ours, (meaning Protestants) not yours: we did ever interpret Supreme for Superior to all men within their Dominions. Phil. And so we grant them to be but not in all things. For in Temporal things they are Superior to all men, in Spiritual they are not. Theop. That restraint comes too late: the Holy Ghost charging you to be subject to them simply without addition. It passeth your reach to limit in what things you will, and in what things you will not be subject. And he there saith, Out of all Question where Princes may by God's Law Command, all men must obey them not only for fear of wrath, but for Conscience sake. To this purpose too he asserts the Supremacy in the following Page: All men are bound to be subject to the Sword in all things, be they Temporal or Spiritual, not only by Suffering, but also by Obeying: but with this Caution, that in things that are good and agreeable to the Law of God, the Sword must be obey'd, in things that are otherwise, it must be endured. At the same rate you will find him writing in his Third Part, p. 7. The Word of God bindeth you to obey Princes, the words of men cannot loose you. But if you will there take notice of the fire of his Zeal breaking into a flame at the thoughts of the displacing of Princes from their Thrones, and of the dis­charging [Page 144] of the People from the Oath and Obedience toward Princes, he saith that they who will go to that, turn Religion into Rebellion, Patience into Vio­lence, Words into Weapons, Preaching into Fighting, Fidelity into Perjury, Subjection into Sedition, and instead of the Servants of God, which they might be by enduring, they become the Soldiers of Satan by resisting the Powers which God hath ordain'd.


I thank God I am a Member of the Church of England that may value it self not only on its Doctrine of NON-RESISTANCE, but on its DO­CTRINE of Positive ASSISTANCE and DEFENCE of all Iurisdictions, Privileges, Pre-eminences and Authorities granted or belonging to the King, &c. or united and annex'd to the Imperial Crown of this Realm.


And how from this great Promissory part of our Oath, our Obligation to assist and defend the Iurisdiction, Privilege, Pre-eminence and Authority of the Dispensative Power in particular, granted or belonging to the King, and united and annex'd to the Imperial Crown of this Realm doth arise, we will at our next meeting consider, and when I will likewise shew you that the Prerogative royal is a part of the Lex terrae.

The End of the Second PART.

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