limiting or enlarging the exercise of their Power in these Matters Ecclesiastical but rather recognizing and confirming what hath been ordered by them as in 5 Eliz. and in Car. 2. in the Act of Vniformity and many other instances might be tendered CHAP. IV. Of Objections against this Power and the exerting thereof with Answer thereunto THere are Reasonings possibly tending another way the Objections obvious I shall now mention having diverse material Considerations pertinent to a more full and clear stating this Case which might have been produced in the body of this Discourse but are reserved rather to this place partly because we find this vulgar way of DIALOGVE lets in Knowledge with less difficulty and what is required by way of a Question engageth him that proposeth with greater attention to observe what is said in the Answer Quest If such a Power be in the King may it not be thence inferred that be hath Power over the Consciences of Men Answ 1 There is nothing in this Power or the execution of it but only taking off Restraints as to the outward Duties which the Law requireth and the pressing such things upon it as are contrary to its light and dictates And the Power which Protects Conscience in its external actions and takes off all fear and Impositions from it is so far from being a Power over the Consciences of men that it is a necessary requisite for acting of its own Power in obedience unto God. Neither 2. doth it follow that if the King may suspend the Execution of Ecclesiastical Lawes that in the like cases he may make such Lawes for the Suspension of Lawes belongs to the executive but the making of them to the Legislative Power which are distinct and in the making of Lawes with Penalties annexed the Liberties Estates and Lives of the Subject are concerned but in the suspension of those Lawes no man is damaged in what is secured to him Quest If such a Prerogative be in the King what need Ecclesiastical Lawes be transacted and established by Parliament Answ 1 That if His Majesty is pleased in these Affairs at any time to take in the Advice and Assent of his Lords and Commons in Parliament it doth not alwayes evidence His Majesty's Power as insufficient of it self for such actings Such a favour may proceed from a Condescention upon the account of a more popular Acceptance that our hands may be fastened more firmly in obedience to those Lawes and Commands in the forming whereof they have been assistant Take it answered in His Majesty's own words Declar. of 26. Dec. 1662. to concur with us in making some such Act as may enable us to exercise with a more universal satisfaction that Power of DISPENSING which we conceive to be INHERENT in us or as also it is by the above-named Learned Judge Hobart expressed These Statutes and the like were made saith he to put things in ordinary form and to ease the Sovereign of labour but not to derogate from his Power Answ 2 Powers sufficient in themselves may joyn and in such conjunction remain entire as Powers Cumulative and not Privative as is evident from what is said in the Statute of 31º H. 8. cap. 10. The King 's most Excellent Majesty tho it appertained to his Prerogative Royal to give Honour as shall seem to his Wisdom he is nevertheless pleased and contented for an Order to be had c. by this High Court of Parliament that it shall be enacted by the Authority of the same self-distinct from that capacity wherein he stands in conjunction with his Subjects as their Head in that respect being in a higher Region above and in a greater distance from those Interests upon the account whereof his Subjects are many times divided and Publick Edicts become formed according to the prevalency of a greater Party to the prejudice of others which are his Loyal Subjects Also by Wisdom and Prudence there is a ballance by which the Tranquillity of a Nation is happily preserved and one Party not over-born by the other having this Power to Mitigate and Dispense as hath been discoursed with what in his Wisdom with Advice of his Council shall seem equal Quest 3 But hath not the King's Prerogative been limitted in our Lawes are there not some things which he cannot dispense with no not with a non obstante Answ I grant it and in several Cases 1. He may by special words in the Statute bind up himself from making any use of his Prerogative 2. In what is malum in se in respect of Impiety or Vnrighteousness 3. When such Dispensations are destructive to the great ends of a Common-wealth common Justice the Proprieties of men c. 1. To the first His Majesty or any of his Predecessors hath not at any time in any Statute or Law that concerns these Ecclesiastical Matters by any such special words bound up himself but rather the contrary as in those two Acts wherein more especially our affair lyeth that of Vniformity where that Dispensation with that Statute granted to Strangers by sole Prerogative-Authority is justify'd In the Act. 22º Car. 2. by the Proviso there inserted the Parliament seems to induce His Majesty's assent in the recognizing his Prerogative so expresly in that Act as if they spoke thus Tho this Act be very severe yet if it be found prejudicial or not to attain the end for which we judge such severity to be requisite It is an Ecclesiastical Affair and your Majesty may when you please disperse or exempt Persons from it for we intend not to abridge your Royal Prerogative 2. There is nothing transacted in these Affairs by the Civil Magistrate and as depending on his Authority but such Matters as in the sense of our Law are things materially indifferent and therefore not mala in se they do not bind the Conscience of the Subject in the nature of them considered in themselves Queen Eliz. Advertisements 1569. Preface The keeping or omitting of a Ceremony in it self is but a small thing yet the wilful and contemptuous transgression and breaking a Common Order c. of Ceremonies why some are c. So that these Precepts concerning Ecclesiastical Matters oblige not in their own Nature as what is either bonum or malum but as Prohibited or Commanded 3. Civil Rights and Claims and Temporal things only are the immediate and intrinsick concern and interest of all Commonwealths Dominium non fundatur in gratiâ If the just Claim of a Prince may not be interrupted upon the account he is of this or that Religion and Perswasion nor may a Subject be justly Banished Imprisoned Confiscated or ruined upon the meer account of Religion or because his Conscience is not cast into the same mould with the Prince or present Establishment It is Popery to deny Allegiance to Prince or Protection to a Subject upon the account of any such difference Quest Religion and the Worship of God being the great Concern of a Nation
Declaration When was it known that a Bishop Dean or double beneficed Parson left his Promotion and became Nonconformist and that others that have been bred up to literature at great charge having Gifts and Parts would be so peevish as to refuse them and being thereupon forced to divert from the way of a more free Education to some mean Employment to get a Livelyhood or live upon the Charity of others It is the condition of hundreds this day in England I say can we imagine any men having such Encouragements in their eye and the more desireable from sense of their present indigency would keep off but from integrity of heart His Majesty as a Common Father hath the same Affections for all his good Subjects and never more Prudence and Tenderness manifested by any Prince than he hath done by this gracious Declaration One Party such as conform enjoy their Consciences with special advantages in Temporal things The other they also enjoy their Consciences with freedom from those severe Proceedings and those are satisfied also And now let not any mans eye be evil because His Majesty hath been so good to their Brethren Let me say again that His Majesty hath in tenderness and Prudence done a great work and that which hath lain undone to the disturbance of his good Subjects more or less ever since the Reformation That is in satisfying or laying a sufficient ground for satisfaction to the two great Parties which divided the Kingdom in Matters appertaining to Religion that is in the Forms and Ceremonies of Worship In the Profession of Faith and Articles of Religion according to the Establishment 13º Eliz. there is an Vnion in the acknowledgment of both Parties And this without the least detriment or just prejudice of either Party those that conform enjoy their Consciences imploy their Talents and reap the Encouragements of the established Government without any loss or detriment to those that conform not and this Party enjoy their Consciences freedom from Suffering and a liberty to follow their Callings without the least damage to the Conformist Quest Is there any necessity His Majesty should exert a sole Power in Affairs of Religion when the Peace and Vnity of the Nation was herein undertaken by his Parliament and many things endeavoured that way by them and purposes its likely of a further progress therein Answ For answer it will be necessary to insert here briefly a Narrative of some passages of his Majesty and his Parliament in these Proceedings His Majesty observing how Affairs stood here in this Kingdom and the Distractions that were upon mens Minds about Religion and Forms of Worship and considering there are but two ways supposed ordinarily to reduce a People again to Peace and Unity in Religion 1. Either by Severity to discourage or extirpate Or 2. By Lenity and Indulgence to bear with Dissenters His Majesty considering those forms and ways of Worship to which Conformity is now required have not only been much scrupled and contended against by Learned and Sober men from the beginning ever since the first Reformation but of late utterly disfavoured by a Representative of the Nation and a Synod of Learned Men And that different practices in the Service and Worship of God had been formerly Patroniz'd and incouraged and such that were no other but what were received and observed in the best reformed Churches abroad and by the Dutch and French Churches here at home upon these and the like Considerations His Majesty chose upon great Deliberation the way of Indulgence it being also most suitable to his Conscience and sweetness of his nature This his Resolution he professed to all the World and engaged himself by Promise to his People he would endeavour the effecting thereof which is more than evident in the many Declarations he made hereof and repeated again upon all occasions He was pleased in a Declaration from Breda to assure a Liberty to Tender Consciences and that no man shall be disquieted or called in question for differences of Opinion in Matters of Religion which do not disturb the Peace of the Kingdom And in his Speech July 17. 1660. He professeth that he owes his being here to God's Blessing upon the Intentions and Resolutions he had and expressed in that Declaration This Declaration His Majesty afterwards terms a Promise solemnly made This solemn Declaration or Promise is so much upon his Royal heart that he tells both Houses July 8. 1661. That so oft as he comes to them he mentions his Declaration from Breda that himself as well as they might mind it In His Majesty's Declaration of Decemb. 26 1662. He tells us That he remembred the very words of the Promises made at Breda concerning Liberty of Conscience and the Confirmations he hath made of them since upon several occasions and as all these things are fresh in his Memory so he is still firm in the resolution of performing them to the full Feb. 10. 1661. In a Speech to both Houses One thing more I hold my self obliged to recommend unto you at this present which is that you would seriously think on some course to beget a better Vnion and Composure in the Minds of my Protestant Subjects in Matters of Religion whereby they may be induced to submit quietly to the Government and most faithfully give their assistance to the support of it His Majesty did not only express his purposes for the Ease of tender Consciences but from time to time endeavoured it And first of all By a Declaration of the 25 Octob. 1660. To all his Loving Subjects of England and Wales concerning Ecclesiastical Affairs which mentioning that from Breda DISPENSETH with the use of divers Ceremonies formerly enjoyned that were offensive March 25. following he gave Commission to certain learned Divines to meet at the Savoy and take the Service-Book under Consideration to the same purpose May 11. 1661. he frees from their Imprisonment such as suffered for Conscience The King and His Parliament happily joyned in the same Pious End Peace and Union yet differed in their apprehensions of the means to procure it which was our great unhappiness The Parliament judged the reducing or rooting out differences by severe Penalties to be the means of Vnity in the Church as they tell His Majesty in answer to his Declaration pressing the asserting of the Lawes and Religion established according to the Act of Vniformity as the more probable means to produce a setled Peace and Obedience throughout the Kingdom The Parliament supposing and possibly some of them perswaded thereof from those who never would distinguish between Non-conformity and Sedition the dissent of Nonconformists from the present Establishment to be rather from a Spirit of Faction and Disloyalty than tenderness of Conscience proceeded accordingly The Act of Vniformity was renewed and the Service-Book enjoyned with no alteration of what was formerly offensive in it but some Expressions of greater difficulty to be digested by those that were tender and nothing
be discovered by this indiscriminating Severity that is who are Dissenters upon Principles of Conscience and who of them so pretending are notwithstanding of a Seditious Spirit These can never be distinguished one from the other when Dissenters and such as conform not be it upon what ground soever are all of them equally branded with the same mark of disloyalty and so represented to His Majesty and all the Nation There is a necessity that this Pretence of Conscience be removed and Seditious Persons discovered and left to condign Punishment and others these stumbling-blocks being removed may by their peaceable Obedience to all other His Majesty's Lawes justifie and vindicate their Integrity which can no ways be done while the Righteous are thus condemned with the Wicked and no relaxing those Lawes which shut up all both Guilty and Innocent under the same Condemnation His Majesty who hath had a clear prospect all along of these things and thence publickly declared his avowed readiness in that Proclamation of 10 July 1669. and otherwise to indulge tender Consciences hath upon these afore-mentioned and the like weighty Considerations been necessitated to Publish this his Gracious DECLARATION of March 15. 1672. where he hath fully performed his Promise made at Breda and so often repeated Thus His Majesty as a Wife and Prudent Prince whose Station is fixed in an higher Orb like the Sun exhaling and consuming or serving to refresh and to shew the dark Foggs and Mists here beneath hath by the Light and Liberty shining forth from his gracious Indulgence refreshed multitudes of his good Subjects and delivered them from the dark misapprehensions of others Nor is this their great relief in any thing prejudicial either to the Estates or Liberties of men otherwise minded nor are such men abridged in any of their concerns Spiritual or Temporal hereby His Majesty hath made sufficient Provision for the satisfying their Consciences in a careful continuing those Ceremonies and Forms of Worship they have been accustomed to Let it not be grievous or offensive to them that their Brethren have obtained from His Majesty in respect to their Consciences the like favour Quest Since these Ecclesiastical Lawes of Restraint were Enacted by Parliament the King giving his Royal Assent had it not been convenient if His Majesty had so pleased that the dispensing with these Lawes had been by Parliament Answ 1 The King and Princes of this Realm His Majesty's Predecessors did Establish many Things and Orders by Parliament relating to Ecclesiastical Matters but did yet nevertheless often exercise their own Power in dispensing with the Penalties at least of such Lawes A constant acting with others in the exerting hereof might tho no Prescription against the King yet introduce at least into the Minds of Men a kind of Suspicion especially in the Vulgar that such Proceedings of the Supream Majesty by his sole Power to be an assuming an Arbitrary Government 2. The Parliament did still continue in this their former Opinion and first Judgment namely That a way of Severity was the only means to settle Peace and Unity They had newly passed the Act for Uniformity without any abatement of what was offensive by reason whereof arose that general Discontent which before we have mentioned His Majesty being sensible hereof did by that Declaration of Decemb. 26. move a second time That an Act might be prepared c. not doubting their chearful co-operation with him being a Matter wherein he conceived himself so much engaged both in Point of Honour and in what he oweth to the Peace of his Kingdoms which we profess saith he we can never think secure whilst there shall be a colour left to the malitious and disaffectionate to inflame the minds of so many Multitudes upon the score of Conscience with despair of ever obtaining any effect of our Promise for their Ease The House returns this Answer We your Majesty's Loyal Subjects who are now returned to serve in Parliament from those several Parts and Places of your Kingdom for which we were chosen do humbly offer to your Majesty's great Wisdom That it is in no sort adviseable that there be any Indulgence to such Persons who presume to dissent from the Act of Vniformity and the Religion Established for these Reasons c. whereof this is one It will in no wise become the graver Wisdom of a Parliament to pass a Law at one Session for Vniformity and at the next Session the reason of Vniformity continuing still the same to Pass another Law to frustrate or weaken the Execution of the former So that now His Majesty had no other Remedy but either 1. To retreat from that Pious and Seasonable Resolution for Liberty of Conscience expressed in Letters to the Parliament then sitting from Breda a Resolution so acceptable to them as the whole House Nemine Contradicente by Letters returned Thanks to him and Blessed the Name of the Lord who put such reconciling thoughts into the heart of the King. And he himself likewise owned an especial Blessing from God upon his Affairs after he had expressed that intention 2. Of break that Promise he solemnly made assuring this Liberty and had professed to the world upon this occasion in his Speech May 8. 1661. That he valued himself much upon keeping his Word and whatsoever he promised to his Subjects and that no man can be his Friend and wish him well who would perswade him to consent to the breach of that solemn Promise 3. Or leave the Nation under greater Distractions and Sufferings about Religion then he found it And that upon 12 years Experience of other means which extended rather to increase the Distempers These dishonourable things I say His Majesty must have suffered and undergone or make use of that Power GOD and the NATION have intrusted him withal tho not with Concurrence of Parliament so much and so often desired by him even so oft as he came to them as he tells them in his Speech July 8. 1661. yet nothing at any time was done to his Satisfaction in Liberty of Conscience by the Houses being obliged in their Judgments to proceed in the other way CHAP. V. Of former Examples for Indulgences HIS Majesty's Gracious Declaration contains not a greater Indulgence altho it be extended to a greater number of Persons than what was granted by His Majesty's Predecessors which before we have mentioned to the French and Dutch Congregations 1. There was an uniform order of Church Government and Divine Service to which not only His majesty's Subjects but all the Inhabitants in His Majesty's Dominions were to conform and no man to absent himself And were enjoyned not to hear or be present at any other Forms of Prayers and Administration of Sacraments then what is in that Book prescribed under Penalties of Ecclesiastical Censures Fines to the King Poor of the Parish c. 2. The Dispensation and Exemption was by the SOLE Authority of the Sovereign and stands thus A Liberty to
A DISCOURSE OF Ecclesiastical LAWES And SUPREMACY of the KINGS OF ENGLAND In DISPENSING with the PENALTIES thereof By Mr. PHILIP NYE LONDON Printed for W. Cross MDCLXXXVII A Discourse of Ecclesiastical Laws and Supremacy of the Kings of ENGLAND in dispensing with the Penalties thereof CHAP. I. The CASE and STATE of the QVESTION THE Kings Power and Jurisdiction in Ecclesiastical Affairs may fall under a threefold Consideration as 1. Put forth by himself 2. By Commission granted to Ecclesiastical Persons and exercised in those Courts we term Spiritual or Ecclesiastical 3. As such Affairs are managed and ordered by him in Parliament and by the Authority thereof The form in which these Ecclesiastical Lawes are expressed to us is this Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the Authority of the same c. Merely to advise and consent implys no more Authority in Establishment of Ecclesiastical Lawes than what was put forth by the Convocation in their Canons but it being added by the Authority thus mentioned may be construed either relating to the advice and consent of the Lords and Commons in Parliament which is a suffrage and more than our advice or bare consent For it implyeth when Bills are formed read debated and assented to by both Houses they were then stamped with some kind of Parliamentary authority Or it is to be interpreted as relating to King Lords and Commons which is likely for Consultations of Parliament altho concluded by Vote yet become not formally a Law until His Majesty hath given his Royal assent And in this sense Ecclesiastical Lawes and Orders which are enacted and established by Statutes have as formal a Sanction being not only by the Authority of the King but by Lords and Commons assembled in Parliament as other Lawes wherein our Civil interests are concerned namely by a joint and not the single Power of either This being granted some may say 't is then needless to dispute those higher interests and thence also inferred That as these Ecclesiastical Lawes have their rise vigour and strength so their diminution and abatement from conjunction of both Powers and are more fixed and stable than those Canons and Orders in Ecclesiastical Matters that have their sanction from the King only But to this I say briefly these Powers are not so equal but the King hath the Supremacy and is enabled thereby to such Acts and Orderings about the Penalties of our Lawes as are peculiar to the Crown and Dignity of a King as in mitigating exempting dispensing licensing pardoning c. and all this more especially in Matters Ecclesiastical as by the following will appear This Power and Superiority exercised by the Kings of England with respect to the Penalties of our Lawes both Ecclesiastical and Civil shall be spoken to in these two particulars First That such an Authority and Supremacy is necessary and ought to be placed in some hand Secondly That it is a Dignity which hath been always in the Kings and Queens of this Realm 1. For the former In all Polities and Forms of Government as there is a rule the which is to be the measure to and by which all mens actions that live under that Polity are ordinarily to be Conformed and Judged so is there always some provision made for mitigating the rigour of the rule in Cases which may fall out and cannot be foreseen by the wisest Legislators And in such cases to exercise summum jus would be summa injuria Therefore there is here not only a Power to Judge as the Case stands in the strict Letter of the Law but as there are Courts of Law so are there Chanceries Courts of Equity and Conscience wherein the Law and Rule it self is dispensed with and varied from The Proceedings there are not according to the strict terms of the Law but secundum aequum bonum according as the merits of the Case require 1. For Lawes constituted for a whole Nation universally to be submitted unto by Persons of what quality soever and how much soever different in their Conditions must needs in their strict execution bear harder upon some men than upon others Parliaments in their Lawes going by the rule of ad ea quae frequentius accidunt c. better a mischief than always an inconvenience It is taken for granted that a general Law which hath its good and necessity in respect to the bulk and body of a People may prove unequal to particular Persons from the Circumstances of their Condition In the Common-wealth the ease and benefit of each particular person of what degree or condition soever is to be consulted but where Lawes are executed in their full rigour and no particular Mercy or Indulgence in special and unusual Cases it will not be So God himself who knows every man's heart yet some of his Lawes which are given in the general to all would not prove so equal to each at all times without exemptions in particular Cases Hence we say affirmative Precepts bind not AD SEMPER To such Lawes is that of Mark C. 2 to be referred in the Case of the Shew-bread And the Pope who assumes to himself a possibility not to Erre yet how doth his Republic abound in Courts for Faculties Dispensation Indulgences 2. It is also to be Considered there are no Societies of men but may erre in their counsels Lawes made in one Parliament come to a review and often to an alteration yea to a repeal in the next The intervals of those great Councels are some time long and if no way of relief were in the mean time the Subject would without remedy undergo the Penalty of an unequal Law. These and the like Considerations make it necessary that besides the Legislative Power placed in the Parliament there be some hand or other also by which upon all emergent occasions the rigour of a Law as to its Penalty may be abated by the means whereof not only mens Liberties and Estates but lives also are sometimes preserved 2. For the other This balance hath always been trusted in the hand of and annexed to the Sovereign Majesty of every State. For this interest doth little vary but remaineth in a manner the same in all States in what form soever they be established In the State of England being an Empire and its Crown in many Acts of Parliament especially relating to these Matters styled Imperial this Power is inseparably annexed thereunto which needs little proof it being confirmed by the OATH of SUPREMACY Our great Lawyers also give in their suffrage hereunto frequently affirming that the Statutes relating to the King 's Ecclesiastical Jurisdiction are not introductive of new but declarative of the old Lawes When an Act say these two learned Judges Coke and Rolls forbiddeth under a Penalty in case it may be inconvenient unto diverse particular persons in respect to Circumstances
the Law gives Power to the King to dispense therewith And in like Cases or upon other Considerations equal he may dispense license pardon c. yea althô these Lawes have been passed by His Majesty's royal assent formerly and what is more a Clause inserted in the Act that the King's Licence in this or that case shall be void Yet it will be no BARR to such Prerogatives as are originally and inseparably inherent in his royal Person but he may give Licence with a NON OBSTANTE thereunto A learned Sergeant in his NO MOTECHNIA hath these words The King by a Clause of NON OBSTANTE may dispence with a Statute Law if he recite the Statute though the Statute say such Dispensation shall be merely void And he may licence things forbidden as to Coin money which is made by the Statute Capital and was before unlawful for that is but malum Prohibitum but malum in se as to leave a Nuisance in the High way c. he cannot license to do but when it is done he may pardon it but where the Statute saith his Licence shall be void which the Civilians call clausula derogative there it must have a Clause of NON OBSTANTE i.e. NOTWITHSTANDING ANY STATVTE and else it is not good And saith the same Author he may in respect of his Supreme Ecclesiastical Jurisdiction exempt some from the Jurisdiction of the Ordinary and dispense with others in things which the Ecclesiastical Law Prohibits upon the same ground that they are not mala in se but prohibita I hold clear saith Judge Hobart That thô the Statute saith that all Dispensations c. shall be granted in manner and form following that yet the King is not thereby restrained but his Power remaineth full and perfect as before and he may still grant them as King. The King may remitt the Penalty and Punishment thô not dispense where what is forbidden by Law is malum in se saith that Sergeant in his forementioned Discourse much more then where what is forbidden is but malum Prohibitum The Statute indeed of 1 Ed. 2. cap. 7. Enacts that no letter shall proceed from the King to discharge an excommunicated Person but where the King's Liberty is prejudiced but as this Statute it self proves the late and former practice so it takes it not away since the King's liberty of discharging such Persons used before is preserved by the same Statute CHAP. II. Of the Prerogative and Regal Power in relation to Ecclesiastical Lawes and Matters of Religion 1. REligion in the moral part thereof namely the Precepts and Commandments of God the institutions and Ordinances of Christ these are not subject to any humane Wisdom or Power The Apostles that were of higher authority in these Affairs than any on earth went no further then as 1 Cor. 11.23 What I have received of the Lord that I deliver unto you To make Lawes in Spiritual Matters that are such by the Light of Nature that men may be moved to do and act according to this Light in duty and our Civil concerns we yield unto the Magistrate who is custos utriusque tabulae 2. There are matters of Circumstance also these and the like are made by our Lawes to depend upon the power and ordering of the Prince This distinction you have laid down as Law by Judge Hobart These are his words Though it be jure divino that Christian People be provided of Christian offices and duties as of Teaching Administration of Sacraments and the like and of Pastors for that purpose and therefore to debar them wholy of it were expresly against the Law of God Yet the distinction of Parishes and the form of furnishing every Parish Church with its proper Curate Rector or Pastor by the way of Presentation Institution c. as it is used diversly in divers Churches and the state or title which he hath or is to have in his Church and Benefice is not a positive Law of God in point of Circumstance And we know well that the Primitive Church in its greatest Purity was but voluntary Congregations of Believers submitting themselves to the Apostles and after to other Pastors to whom they did minister of their Temporals as God did move them Government is a beam of Divine Power and therefore he proceeds saying if a People refuse all Government it were against the Law of God but if a popular State will receive a Monarchy it stands well with the Law of God. In the Case of Glover and Colt against the Bishop of Coventry and Litchfield pag. 149. From all this the Judge seems to confirm his distinction by way of Comparison thus As in humane affairs Government in the general and essentials of it that one man be subject to another in an orderly way is necessary and jure divino and not in man's liberty and dispose Yet for the modes and forms of Government and like Circumstances it is left to the choice and wisdom of Men and the Conduct thereof So in Matters of Religion which are not jure divino our Law judgeth the Magistrate hath the ordering thereof in each Nation according to the manners and temper of the People which is various And in particular the disposing of Pastors and People for the more convenient and orderly Service and Worship of God to be only jure humano and may be otherwise and was so in the Primitive Church in her greatest Purity Pastors and People were not then as now engaged by this relation one to another in this Parochial bond or tye but enjoyed a Christian liberty voluntarily to dispose of themselves under such and such a ministry as they should make choice of to themselves The Church is said in that state to be in greatest Purity 1. The Congregational way therefore is not a way in this learned Judge's opinion of disorder and confusion as is so frequently suggested 2. And that it is in the power of Supreme Majesty to dispense with a Parishioner as well as with a Pastor or Rector to be a non-resident and take another Rectory the division of Parishes being jure humano What those things and Matters of Religion are in the judgment of our State that come under the manage of humane Wisdom and Power is well expressed in Queen Elizabeth's Advertisement These Orders and Rules have been meet and convenient to be used and followed yet not prescribing these Rules as Laws equivalent with the eternal Word of God and of necessity to bind the Consciences of our Subjects in the nature of them considered in themselves or as they should add any efficacy or more holiness to the virtue of publick Prayers and to the Sacraments but as temporal Orders meerly Ecclesiastical without any vain Superstition or as Rules in some part of discipline concerning decency distinction and order for the time And in the Articles of 1562 It is not necessary that Traditions and Ceremonies be in all places one or utterly alike for at all times
Power dispense with and license such Preachers which now seem and are reputed so to be And it follows also if his Power will extend to indulge such persons it will not prove short in respect to hearers which are as it were new in the way of their Assemblies and indulge such as are not in the Ancient order of the Parochial Congregations of England 2. The like Deductions might be drawn from other of those Instances I shall notwithstanding for further confirmation add other instances and such wherein you have this Power put forth in dispensing and exempting from what hath been burthensom to mens Consciences by Episcocal Impositions 1. That of Edw. 6. In the 4th year of his reign Certain Protestants removing themselves and Families out of Popish Countries into England for the sake of Conscience and being not free to submit to the forms of Worship and Discipline established in this Church this good King by his SOLE Authority granteth them the Liberty of such a Church Government and form of worship whereof we shall say more in its place as should be most suitable to their own Perswasion This being utterly against the Provision and Settlement NEWLY made by Parliament He strengthens his Grant by a NON OBSTANTE to the Statute and strictly requires all Bishops and Mayors to suffer them to enjoy this Liberty of Conscience 2. Another instance you have of the same good King in Hooper being chosen Bishop of Gloucester and there being certain Rites and Ceremonies established by Act of Parliament to be Conformed unto in the Consecration of Bishops offensive to his Conscience Edw. 6. requires Arch-Bishop Cranmer to omit these Ceremonies discharging him of all manner of Dangers Penalties and Forfeitures he should be in danger of and run into in any manner of way by omitting of the same and these our Letters saith the King shall be your sufficient Warrant and Discharge therefore 3. The instance you have also of what was done by Queen Eliz. for relieving Tender Consciences namely Her Majesty being informed that in certain places in this Realm sundry of her Subjects called to the Ministry being induced by sinister Perswasions are scrupled about the Form of the Oath which by an Act of the late Parliament was prescribed to be taken according to the Form expressed in the Act under the Penalty of being disabled to bear any Office in State or Church Her Majesty was graciously pleased by her Power in Ecclesiastical Affairs to give and declare such a sense and construction of the words of this Oath expressed in other words much different for their satisfaction with a Gracious Declaration that such Persons fit for the Ministry as could not take the Oath in the Parliaments Form should be accepted to do it in this sense and doing so they should notwithstanding be accepted of her Majesty as good and obedient Subjects and be acquitted of all manner of Penalties contained in the said Act against such as should refuse the same By which means many an able man had freedom to exercise his Ministry which otherwise must be laid aside which Indulgence of hers altho against an ACT of Parliament yet was owned as done by lawful Authority and recognized by the Parliament 5 Eliz. and her Execution assented to and enacted 4. This renowned Queen together with King James and King Charles the First confirmed the Indulgence and Dispensation granted by Edw. 6. to Strangers yea although it was a Gravamen to the Bishops as making an evident breach upon the Lawes of Vniformity for that 't was granted not only to the Parents but to the Children and Childrens Children which were Natural Subjects to the Realm Persons of great Estates and Purchasers of Lands and interessed in the Soil the number also of these Congregations increasing and situated in the eminent and chief Towns and Cities in the Kingdom there to live and Profess as separated and divided Bodies a Discipline and Worship differing from the Church of England which was not at first intended as Bishop Laud complains there being onely that one in London when the first Grant was made and such things were frequently suggested against them Yet these Princes were graciously disposed notwithstanding the Act for Vniformity from time to time to Confirm the Grant of Edward 6th by several Orders past some of them formed as having special respect to such Objections And it will not be amiss for the Reader 's Information here to insert some of them at least The Form in which Queen Elizabeth confirmed their Liberties Non ignoramus variis Ecclesiis varios diversos jam ab initio fuisse ritus ceremonias non contemnimus vestras neque vos ad nostras cogimus King James Oct. 17. About the Dutch at Colchester His Majesty granted their Orders Liberties c. in as large and ample manner to all intents and purposes as heretofore they have been used tolerated and allowed unto them any Provision or Jurisdiction to the Contrary thereunto in any wise notwithstanding An Order of King James under his Signet Jan. 13. 1616. on their behalf These are therefore to Will and Command all our Courts of Justice and other our loving Subjects to permit and suffer the said Strangers and their Children c. The Order of the Councel for the Walloons of Norwich Oct. 10.1621 Those of Norwich tho born in the Kingdom shall continue to be of the said Congregation and subject to such Discipline as hath been by all the time of 55 years practised by them The Order of King Charles the First Nov. 13. 1631. We Will and Command our Judges to permit and suffer the said Strangers and their Children quietly to enjoy all and singular c. without any Trouble Arrests or Proceedings by way of information or otherwise An Order of Councel for the Dutch of Norwich Jan. 7. 1630. That all those that now or hereafter shall be Members of the Dutch Congregation altho born within this Kingdom shall continue to be of the said Church so long as his Majesty shall be pleased These and diverse the like instances might be produced which sufficiently evince it as granted on all sides and constantly supposed to be according to the constitution of this Realm that our Kings and Princes have Power in and from themselves as an inherent inseparable Prerogative not only to enjoyn and give Lawes to their Subjects in Matters Ecclesiastical such as are left to the ordering of any Civil Power but also to dispense and exempt from Lawes of that kind tho established by them in conjunction with the Authority of Parliament Nor do we find that Parliaments at any time have taken into Consideration what was ordered and done by these Kings and Princes in Ecclesiastical Affairs as being their known Prerogative no not in the time of King James who assumed the most in such managements nor by any Petitions or Addresses to any of those Princes which is usual in the concerns of Civil Rights for
done yet in what His Majesty had promised in way of relief to tender Consciences Hereupon not only multitudes of faithful Preachers of the Gospel in several Shires in this Kingdom were put from their Imployment but also the Minds of men are much disturbed and filled with hard Thoughts and Jealousies upon this account Insomuch as His Majesty was enforced to Publish that Declaration of Dec. 26. In which he expresseth the surmises of the People occasioned by this Severity thus That having made use of such solemn Promises from Breda and in several Declarations since of Ease and Liberty to tender Consciences instead of performing any part of them we have added straiter Fetters than ever and new rocks of Scandal to the scrupulous by the Act of Uniformity To this surmise and jealousie His Majesty condescends to make a reply thus As concerning the non-performance of our Promise we remember well the very words of those from Breda c. and the Confirmation we have had of them since upon several occasions in Parliament and as all these things are still fresh in our memory so are we still firm in the resolution of Performing them to the full But it must not be wondered at since that Parliament to which those Promises were made in relation to an Act never thought fit to offer us any to that purpose The House of Commons took his Declaration into Consideration and represented to His Majesty divers Objections against it and laid it aside so that nothing was effected thereby to His Majesty's purpose the Parliament being otherwise minded And certainly it is not only their Liberty but Duty to proceed in reforming Abuses by such means as are in their Perswasion most suitable and likely to be effectual otherwise they would not be faithful in their trust So now greater Severities against Nonconformists are provided in several Acts upon occasion As the Act against Private Meetings 16 Car. 2. The expelling Ministers five Miles from Burrough Towns 17 Car. 2. Especially that Act of 22 Car. 2. intituled An Act to prevent and suppress Seditious Conventicles and all very high and heavy in the Penalties expressed both upon Ministers and People His Majesty notwithstanding condescended to give his Royal Assent to that Bill It being judg'd this Severity was taken up by them from good intentions and as the likeliest means of Peace and Union as also if it proved not to be so that they might yet be more fully convinced of the insufficiency of such a way having had hitherto for some years experience how little effectual it hath proved Yet this Bill containing nothing for Substance but what was proper to his Ecclesiastical Power being an ordering the Externals of the Church and nothing of immediate concern in Civil Affairs in the whole Act and His Majesty having intentions to take the other course if this of Severity effected not what was aimed at a Proviso is inserted in the Act in these words Provided also that neither this Act nor any thing contained therein shall extend to invalidate or avoid His Majesty's Supremacy in Ecclesiastical Affairs but that His Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Power and Authority in Ecclesiastical Affairs as fully and amply as himself or any of his Predecessors have or might have done the same any thing in that Act c. notwithstanding As this Act of 22 Car. 2. was very strict and severe in it self so the execution of it was with much violence and rigour in most parts of the Nation there being Provision made in it that such as even loose and indigent Persons may intrude themselves in the promoting thereof with encouragements not only of their lusts satisfied in persecuting those they so much hate but their Necessities supplied from large rewards for the same having Power given to inform against Justices Mayors Constables and such who are intrusted with the Execution hereof who are under great Fines and Penalties for omissions limited in this Act and the Informer to have a moiety hereof himself insomuch that by the rigorous execution of it Thousands of His Majesty's good Subjects were utterly ruined Persons industrious and diligent in their Callings driven from their Habitations their Houses broken open their Goods imbezziled the Materials of their Trade the Tools they wrought with and the Beds they lay on seized and our Trade every where decayed Rents of Lands falling Poverty coming on like an armed Man Persons haled from these Meetings for the Worship of God through the open Streets to Prisons being of the same Faith with us and so peaceable and unblameable in their Conversation as that nothing could be objected against them but in the Matters of their God nor for any thing upon that account but their endeavouring to practise as those reformed Churches we our selves own as such and hold a brotherly Communion with as the true Churches of Christ. The Nation generally being thus distracted and distressed those in Power going on still to make Lawes to afflict and punish and others ingaged quietly to suffer whatsoever they should be exposed to for their Consciences Matters being at this pass there was apparent Necessity that some remedy in the case should be seriously and speedily applyed His Majesty considering they are all his Subjects and how much by such Severity the Interest of his Sovereignty is narrowed so great a number of his People rendered unworthy of his Countenance and Protection and upon no other account or crime but their being of different Perswasion in some Externals of Religion Persons otherwise wise for Industry Faithfulness and Loyalty every way qualified to dâ—… His Majesty and their Country as good Service as any others of His Majesty's Subjects whatever His Majesty also did call to Mind that Prudent caution which his Royal Father left him in these words Take heed saith he that outward Circumstances and Formalities in Religion devour not all or the best incouragements of Learning and Industry but with an equal Eye and impartial Hand distribute Favours and Rewards to all Men as you find them for their real goodness both in Ability and Fidelity worthy and capable of them This will be sure to gain you the hearts of the best and most too It was likewise impossible for His Majesty to imagine that so ma-many thousand in his observation who have suffered so grievous things with such humble submission should daily thus expose themselves and Families to ruine upon no other or better Principles than a Spirit of obstinacy and stubbornness Great Sufferings and by great Multitudes yet no Tumults no resisting whereas in the beginning of the Reformation what Armies in the North and in the West upon this account by those of another Perswasion were raised altho yet they had suffered but little His Majesty as was said as a Common Father beareth Affection to all his Subjects but who of them deserves it and who not can nover