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A42797 A Glance on the Ecclesiastical Commission being a discourse concerning the power of making and altering ecclesiastical laws, and the settling religion, whether it belongs to our kings alone, and a convocation, or whether it must not be asserted rather no medling with law-making or law-mending, (whether ecclesiastical or temporal), but by authority of Parliament. 1690 (1690) Wing G792; ESTC R25461 5,925 14

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A Glance on the Ecclesiastical Commission BEING A DISCOURSE Concerning the Power of Making and Altering Ecclesiastical Laws AND The Settling Religion Whether it belongs to Our KINGS Alone AND A CONVOCATION OR Whether it must not be Asserted rather ☞ No Medling with Law-Making or Law-Mending whether Ecclesiastical or Temporal but by Authority of Parliament In hoc Reges sicut eis Divinitùs praecipitur Deo serviunt in quantum Reges sunt si in suo Regno bona jubeant mala prohibeant non solum quae pertinent ad humanum Societatem verum etiam quae pertinent ad Divinam Religionem Aug. Cont. Cres l. 3. c. 54. London Printed for W. Alchorne 1690. THE RIGHT OF Making and Altering Ecclesiastical Laws OR Of Settling Religion Where it lies DISCOURSED WHEN the Christian Faith was first Embraced by the Saxons nothing had the force of a Canon or Ecclesiastical Law but what was Established in Parliament Spelman's Counsels and our Old Historians such as Malmsbury Hoveden Westminster Ingulphus supply us with innumerable Instances of this kind not mentioning any Canons but what had a Parliamentary Sanction The granting Charters of Execution to Abbies seemed more peculiarly to belong to our Kings as Supream Ordinary yet the principal Grants of this Nature even that to Battle Abby by William the Conquerour was Consilio Episcoporum Baronum meorum After King William the Popes came in time to Usurp such Authority over the Clergy of this Land as to do even what they pleased until Henry the VIII put an end to that Usurpation by assuming the Supremacy In this King's Reign An. 25. c. 19 an Act of Parliament passes which grants to the King a Power to assign Thirty Two Commissioners Sixteen of the Laiety and Sixteen of the Clergy to Examine the Canons for the Abolishing the Ill and letting the Good stand And it is Enacted in this Statute that no Canons shall be Made or Executed without the King's Consent Upon this Clause it was that the Judges in King James's Reign grounded their Sentence when they gave him such a Power as I shall mention when I come to it But other Lawyers do deny That any such bare Negative Words can be a Ground sufficient for raising a Positive Rule as they then did in this Case It is rather thought better Arguing from this Commission that no Canons can oblige the Laiety unless their Representatives be at the Making or Establishing of them In Edward VI. Time a like Power is granted to him by an Act as this was to his Father Where Note That neither Henry nor Edward had any such Power Inherent to the Crown for else neither of them had need of any Act of Parliament to give it to them In Queen Elizabeth's First Year a Bill of the same Import was brought into the House and read Twice and ordered to be Engrossed but nothing came of it which nevertheless though it passed not affords us the same Argumentation In this Year was there an Act of a more grievous nature that passed An Act annexing to the Crown the Ecclesiastical Jurisdiction which enabled Her her Heirs and Successors with Authority to assign Commissioners for the Exercise of the same Here arises the High-Commission Courts which were so great a burden to the Subject during Her King James and King Charles the First 's Reign until the 17th Year of the said Charles and then was this Power repealed I must take leave here to distinguish between the Power of Legislation whether in Ecclesiastical or Civil Matters and this Power of Jurisdiction When the Parliament gave the Queen such a Power it is not to be understood they intended that She or King James should act so Despotically in Maaters of the Church as they did but that they should have a Power of Judgment or Jurisdiction only and not a Power of making any Law Ecclesiastical or Temporal or altering any thing by Law Established about Religion or otherwise For such a Power was and is to be asserted always to belong only to Parliaments And this may be confirmed by another Act the Act of Vniformity made the same Year An. 1. c. 2. wherein She is empowered with the Advice of her Ecclesiastical Commissioners and Metropolitan to Make or Alter any of the Rites and Ceremonies if she saw just occasion This Power now is different from the former or else it would not be given her in another Act and it did not belong to her Crown or else it would not be given her at all And it was no more but as to Rites and Ceremonies Nothing else required in that Act of Uniformity or in the Matter of Religion could be altered by Her unless by Parliament Nevertheless in the Reign of this Queen and in King James's the Two Houses were in a manner quite neglected in matters Ecclesiastical The Queen sent forth her Injunctions and her Clergy under her Name but not under her Seal as is suspected by the Learned gave out their Advertisements and Articles and the Queen her self did even Industriously endeavour to lay aside all Parliaments as useless when things of this nature were to be considered The Queen I say was very peremptory in assuming to her self an uncontroulable Power in Matters Ecclesiastical but the Commons did the utmost they could to maintain their Right and toward the close of her Highnesses Reign obtained it In the 8th of Eliz. Five or Six Bills touching Religion and Church Government were read in the Lower House but because the House was suddenly broke up nothing was done In the 13. Eliz. Seven Bills for Reformation of Religion were read each Bill three times but it was declared in the House That Her Majesty would not suffer these things to be ordered by Parliaments Notwithstanding which Message as Sir Simon Dewes in his Journal still has it the House of Commons proceeded and sent up the Bills for Orders of Ministers Residence of Pastors and Commutation of Penance to the Lords But the Bill of Subscription only to the Articles of Faith and Doctrine of the Sacraments and not to the Ceremonies or Government passed this Session In the 14. Eliz. the Commons are on the other Bills again but the Queen by Mr. Speaker declares her Pleasure That from henceforth no Bills concerning Religion be prefered or received into the House unless the same should be first considered and liked by the Clergy In the 35. Eliz. Mr. Morrice Attorney of the Court of Wards spoke smartly against the Subscription enjoyned by Regal Authority and against trying the Clergy who refused the same by way of Inquisition With him concurred Sir Francis Knowles and Mr. Oliver St. John but Sir Robert Cecil stood up and told the House That though he knew not what was in the Bill which Mr. Morrice had brought in yet he remembred very well that it being about Religion Her Majesty had streightly forbidden Them to meddle in such Cases And Her Highness soon after Commanded Mr. Speaker to
declare Her Pleasure That no Bill touching Reformation be exhibited and if any were She charged him on his Allegiance not to read them But in the 39. Eliz. the Queen consented that the Parliament should proceed in the Reformation of the Church However King James coming to the Crown he very soon orders a Conference at Hampton-Court and makes Alterations in the Common-Prayer without help of Parliament and carrying it on his own Authority calls a Convocation and confirms at once 140 Canons and Constitutions Ecclesiastical In his Second Year he causes his Judges to meet and give their Opinion and they notwithstanding the Onerousness hereof to the Subject do declare That the King without a Parliament might do thus that is Make and Impose Canons and Deprive in case of Non-Obedience Observe likewise that this was an extrajudicial Opinion there being no Cause depending before them Such slippery Tongues and Judgments have Lawyers when they are under the Temptation of Flattering Princes This you have in Crook's Reports After this Sentence no wonder that you find the Ecclesiasticks growing up to an Exorbitancy of Power during the Reign of this King And in the Reign of Charles the First Laud makes the same steps New Constitutions are advanced high ensnaring things devised The Et-cetera Oath Sports on the Lord's Days imposed The Nation can't endure it Stirs are raised a Parliament forced to be called and they prosecute a Redress of these Grievances so vehemently that King and Arch-Bishop and the whole Hierarchy with Him is brought to an end In Charles the Second's Reign following there is this one thing Remarkable That out of favour to the Papists he puts forth a Declaration for Liberty of Conscience to the Dissenters he goes not to promote it in the Houses if we have Liberty it must hang upon his own Will or not at all This the Parliament resents and as Illegal opposes it and constrains him to Revoke his Declaration Here was there a plain Conquest and indeed Triumph over the Dispencing Power of our Kings And yet James the Second taking the Throne resumes the same and persists in it with that Obstinacy as we all know hath occasioned our present Revolution The thing that gave the Crown and Clergy their Advantage was an Error generally received by the common Lawyers even by Sir Edward Cook himself that what Power in the days of Usurpation was de facto exercised in England by the Popes doth de jure belong to our Kings Whereas indeed it was not that Unaccountable Power the Pope assumed but the Ancient Power only exercised by the Kings of England that was restored and united to the Imperial Crown Or as I have de industria before distinguished it was not any Legislative Power without a Parliament but the Power of Jurisdiction only was annexed thereunto There are these Reasons for this do appear 1. From those Acts and all those Acts of Parliament in Edward the 6th and Elizabeth's Reign or any other since Henry the 8th which have given to our Kings or Queens any such Power as I have before mentioned For such Acts must have been needless if they had that Power and more than that by their Supremacy only 2. From those Instances that may be given and more particularly in the matter of Marriages wherein the Popes took power to Dispence and our Kings don't and can't without the Parliament as in the late known Lord Ross's Case 3. Ab incommodo If these Lawyers were in the right then must not only all the Arbitrary Proceedings of all our former Princes which have been still so much blamed and redressed by Parliaments but even the doings of our late King James the Second they being all and every one of them alike grounded upon this bottom be justified against the whole Nation and We condemned 4. Ab Authoritate From Authority greater than these Lawyers and that is the Opinion of the House of Commons who in that Year or a little before when the Judges gave King James such a Power in Ecclesiasticals as I have before recited did cause a Message to be delivered to him from them by their Speaker which I will set down in the words of the Journal Mr. Speaker in his Speech to the King declared That his Majesty was misinformed if any Man should deliver That the King of England hath any Absolute Power in himself either to alter Religion or to make any Law concerning the same otherwise than in Temporal Cases by consent of Parliament 1. Jac. 1. Fol. 567.569 The truth is That during the Reigns of Elizabeth James the First Charles the First when Nonconformists were outed of their Ministry and Livings by the Canons and not by legal Trials and the same Despotical Power was exercised by those Princes and the Bishops against the Puritans as was exercised by James the Second the Eyes of our Churchmen were generally shut But when those Proceedings were turned against the Church upon the very same Foundation by the late King I may righteously expect that the Eyes of such Men now as well as others especially of some of the Learned though they had the beam of Non-resistance in them before should be opened to see and acknowledg these Truths or Assertions of this Paper viz. That it was not a Power of making Ecclesiastical Laws but a Power only that belonged to our Kings before the Pope's Usurpation that was restored to Henry That our Ancient Kings had no Legislative Power out of Parliament That all Canons derive their Force from the King in his Legislative Capacity that is as Incorporated with his two Houses That they could not of themselves before the first of Elizabeth grant any Commissions for the exercise of Ecclesiastical Jurisdiction which yet is less than Legislation That the branch of that Law of Elizabeth granting so much being Repealed by Charles the First there can never be any other such Courts legally Erected That Benefices are a Free-hold and that no Minister ought to be deprived of them but by his Peers or Trial of a Jury I will add That the Subjection which is required in the Sacred Scripture to the Higher Powers upon pain of Damnation is a subjection to the Powers that Are not to the Powers that are Not. Now the Powers that Are are the Powers according to the Constitution In this Case then let us hearken to Bishop Bilson and let Bishop Sanderson be attended in other Cases wherein he was more skilful than in Politicks If a Prince should go about to Subject his Kingdom to a Foreign Realm or change the Form of a Commonwealth from Impery to Tyranny that is from Regal to Despotical or neglect the Laws Established to execute his Pleasure In these and other Cases that might be named if the Nobles and Commons agree together to defend the ancient accustomed Liberty Regiment and Laws they are not to be accounted Rebels In page 520. of his Book about Subjection and Rebellion Upon the whole that is here related there may arise two Questions which are to be held distinct though apt to be confounded The first Question is If these things be so what then shall we think indeed of the Power of the Bishops Unto this that which some Lawyers say is Edward the Sixth makes a Law That the Bishops shall hold no Courts but in the King's Name Mary Repeals this Law or this part of it King James Repeals that of Mary It follows say they that Edward's Statute must be Revived and is of Force If not the Common Law starts up and that is declared therein to say the same Nevertheless that other Lawyers have something counter to this and some considerable thing too I am not so malignant to the Bishops as not to believe Let them that can and can make it good tell what The Second Question is And what shall we think of the King's Power as to this present Ecclesiastical Commission As for which I must confess my self so throughly satisfied with the Good intended that I will say no more than this only Whereas It was an Act of Parliament wherely Henry and Edward had and Elizabeth should have had the Power to appoint Commissions of this kind that is Ecclesiastical ones though with this difference that those Commissions were to Determine things this Commission only to Prepare things for the determination of a Convocation and the Parliament which Power yet of Preparation was to have been granted by an Act if the Bill for Comprehension had first passed as was intended by both Houses and so the same had been done Now as in former Reigns and then all had been well out of doubt I do humbly move both for the vindication of the Right of Parliaments and Preservation also of the Honour and Pains of the Commissionated Bishops and Doctors and the taking what they have so kindly done in good part That the Bill only for Comp●ehension be the more suddenly revived and that will make up the whole Matter When th● Act should have gone before the Commission because the Commission should have bin Authorized by the Act to put the Commission before the Act hath bin to put the Cart as we say before the Horse And consequently if the Bill be revived and passes and the Commissioners Authorized thereby to present what they have Prepared to the Convocation and the Convocation what they shall Determine thereupon to the Parliamens then will the Horse be re-duired before the Cart and we shall drive o● fair●y they being both set right The Truth is the main thing which I● Comprehension is the business to be attended and let but that which is already in the Bill be Established the several things by way of Improvement thereof with respect to the Book of Common Prayer the Book of Orders the Book of Canons the Government and Discipline of the Church which last do require a more profound Reformation may stay a due time to receive Perfection They must have time to be Debated to be Compounded and God knows when so great a Work can be done There is no need no reason that we wait for the Act of Comprehension till then unless we tarry and it be some Ill Mens Plot to have non at all FINIS