Let this be Printed WHITE-HALL Febr. 25 th 1687. Sunderland P. THE Legality of the Court HELD BY His Majesties Ecclesiastical Commissioners DEFENDED Their Proceedings No ARGUMENT Against the Taking Off Penal Laws Tests LONDON Printed and are to be Sold by Richard Janeway in Queens-Head-Alley in Pater-Noster-Row MDCLXXXVIII THE Legality of the Court Held by His Majesties Ecclesiastical Commissioners DEFENDED THE Manifest Design of our Church-men's Out-cries against His MAJESTIES Ecclesiastical Commission being to insinuate into the Mobile That the KING notwithstanding the solemn Promises he has made to the Church of England intends nothing less than Her Ruin I cannot forbear adding some Considerations to what the Vindicator of the Proceedings of His MAJESTY's Ecclesiastick Commissioners hath said on this Subject And thus much I the rather do because I find that the Last thing they aim at is the setting the Nation against the Taking off Penal Laws and Tests But that I may the more Successfully go through this Province it will be necessary that I examine what has been opposed to the Legality of the Court. His MAJESTY has Promised to Protect the Church of England as by Law established and hitherto has done Nothing that interseres with this most Gracious Promise for it must be acknowledged that a Correcting the Disobedient Members of a Church is not a Destroying but rather an using proper methods to preserve and secure it The Church of England is a Body-Politick compact and compounded of many and almost infinite several and yet well-agreeing Members of which the KING is Head instituted and furnished with plenary and entire Power Prerogative and Jurisdiction to render Justice and Right to every part of this Body of what Estate Degree and Calling soever he be The Exercise of this Power and Prerogative according to the Ecclesiastick Laws of this Realm is the Great Engine used for the Defence and Security of this Church The Distribution of Justice whether by encouraging those that do well or punishing the Offenders is the true way to support a Body-Politick Thus much I presume all men of Sence will yield from whence it is easily inferr'd That on my Clearing the Legality of the Commission for nothing has been that I do know objected against the Defence of its Proceedings it must be moreover granted that His Majesty has done the Church of England no harm My present Work then is to consider What has been urged against the Legality of this Court The Author of a Letter to the Vindicator will have the Question to be Whether or no by the Laws of this Nation as they now stand the KING 's Ecclesiastical Jurisdiction may be delegated to Commissioners Or Whe-Ecclesiastical Commissioners derived their Authority from His Majesty by vertue of the First Elizabeth only and not upon the score of any Prerogative in the Crown preceding to that Act whereby our Kings might appoint Commissioners in such Cases ad libitum is the single Question upon which the Validity or Invalidity of the present Commission will turn To this the Author answers That it is not an Expression that might drop from my Lord Coke's Pen that will determine so weighty a point as this especially it being a question that depends upon some knowledge of Antiquity which my Lord Coke was very little acquainted with Besides he adds That my Lord Coke never tells us that our King 's by vertue of their ancient Ecclesiastical Jurisdiction could appoint any Commissioners After this the Author goes on to let us know what the ancient Jurisdiction Ecclesiastical was boldly affirming that no Ecclesiastical Jurisdiction was anciently delegated to Commissioners For saith he Commissioners are not such Arbitrary things as some mistaken Men do fondly imagine And how plausibly soever it be said That what Power a Man has in himself he may delegate unto another Yet this difference must be admitted betwixt Persons Commissionated by the KING in Matters of Government and Persons authorized by private men to act for them and in their stead viz. That private men may by Law do those things in Person which they impower others to do for them But the KING Commissionates Persons to do what Himself cannot by Law do in Person This is the Substance of what our Author opposes to what the Vindicator had said of the Legality of this Court. And in my Reply no more is needful than to shew 1. That in the Sence of the Church's great Archbishop the KING may do by Law those things in Person which He impowers Commissioners to do for Him. 2. That before the 1 Eliz. the Kings of England by the Common Law might grant out Commissions 3. That notwithstanding any thing contained in the 16 Car. 1. or 13 Car. 2. be KING may do so still 4. That His Majesty may exercise this Prerogative in Matters Ecclesiastical in a more ample manner than yet He has done and therefore seeing he doth not it 's manifest That His Majesty designs no Hurt to the Church of England To the First I will only insist on what is affirm'd by Archbishop Bancroft the Malleus Puritanorum the great Champion of our English Church who was President of the Convocation called in the First year of K. James 1. and stifly insisted on the imposing the three Articles and on a Depriving all that disobeyed This Great man the Church of England's Darling expresses himself most fully in these Words Lib. 12. Mich. 5 Jac. Prohibitions de l'Roy as Sir Edward Coke reports Upon Sunday the 10th of November the KING upon Complaint made to him by Bancroft Archbishop of Canterbury concerning Prohibitions was informed That when question was made of what Matters the Ecclesiastical Judges have cognizance either upon the Exposition of the Statutes concerning Tythes or any other thing Ecclesiastical or upon the Statute of 1 Eliz. concerning the High Commission or in any other case in which there is not express Authority in Law the KING Himself may Decide it in His Royal Person and that the Judges are but the Delegates of the KING and that the KING may take what Causes he please to determine from the Determination of the Judges and may determine them Himself And the Archbishop said It was clear in Divinity that such Authority belongs to the KING by the Word of GOD. Nothing can be more expresly opposite to what the Author of the Letter affirms He saith that The KING cannot by Law do that in Person which He impowers others to do But the Archbishop is positive That the KING can do it in Person yea that thus much is ratified by the Holy Scriptures and therefore is out of the power of humane Laws to alter If then there be any Truth in this Church-man's Divinity there is no force in what the Author offers for Law. But Secondly The thing I chiefly insist on is this That before the First of Elizabeth the Kings of England might grant out Commissions In Caudries Case Coke Rep. Lib. 5.
after great and long Deliberation and Consultation the Judges resolved That the Act of the First year of the late Queen concerning Ecclesiastical Jurisdiction was not a Statute Introductory of a New Law but Declaratory of the Old which appeareth as well by the Title of the said Act viz. An Act restoring to the CROWN the Ancient Jurisdiction over the State Ecclesiastical and Spiritual c. As also by the Body of the Act in divers parts thereof For that Act doth not annex any Jurisdiction to the CROWN but that which in truth or of Right ought to be by the Ancient Laws of the Realm parcel of the KING's Jurisdiction and united to his Imperial Crown and which Lawfully had been or might be exercised within the Realm Thus you see the Judges are clear in their Opinion that the First of Elizabeth is not Introductory of a New Law but Declaratory of the Old And thus much in the General the Author of the Letter will grant me but then he will by no means yield That our KINGS by vertue of their Ancient Inherent and Primitive Ecclesiastical Jurisdiction might Delegate to Commissioners the Exercise thereof However if we observe what was further resolved by these Judges we shall find that 't was thus If that Act of the First Year of our late Queen had never been made it was Resolved by All the Judges that the King or Queen of England for the time being may make such an Ecclesiastical Commission as is before mentioned by the Ancient Prerogative and Law of England Thus you have the Resolution of all the Judges against the Opinion of one unknown Gentleman whether Lawyer or no is not clear but had he been though he discovers no such thing Learned in the Laws I presume his Opinion is not to be regarded in a Matter wherein the Judges are so plainly against him And though this be enough yet ex abundanti I will add one Resolution more of our Judges Coke Rep. Lib. 12. Mich. 4. Jacob. post Prandium There was moved a Question amongst the Judges and Serjeants at Serjeants-Inn If the High Commissioners in Ecclesiastical Causes may by Force of their Commission imprison any man or no First of all it was resolved by all that Before the Statute of 1 Eliz. c. 1. The KING might have Granted a Commission to Hear and Determine Ecclesiastical Causes To return to our Author on this Question Whether our KINGS by vertue of their Ancient Ecclesiastical Jurisdiction might Grant out Commissions or Delegate the exercise of their Power to Commissioners I say on this Question as this Gentleman grants the Validity or Invalidity of the present Commission will turn that is to say If by the ancient Laws our KINGS might Grant out Commissions then the present Commission is valid But it has been Resolved by all the Judges again and again that by the Ancient Law before the First of Elizabeth the KING might Grant out Commissions Ergo the present Commission is valid the Court is a Legal Court. Though this be so very clear yet our Gentleman is still of the Opinion That the Statute of 16 Car. 1. has taken away the Commission it self Root and Branch I will therefore proceed to the Third point viz. Thirdly That notwithstanding any thing contained in the 16 Car. 1. or 13 Car. 2. the KING may still Grant out Commissions For if the Power of Granting this Commission be as our Church-of England-Lawyers declare a part of the Ancient Ecclesiastick Jurisdiction it is notwithstanding any thing in the 16 Car. 1. or 13 Car. 2. still so For it is expresly declared in this 13 Car. 2. c. 12. That Neither the said Act nor any thing therein contained DOTH or Shall take away any Ordinary Power from the Arch bishops Bishops c. but that they and every Person above-named exercising Ecclesiastical Jurisdiction may proceed and execuce all manner of Ecclesiastical Jurisdiction belonging to the same before the making of the 16 Car. 1. And if we look back and observe who those Persons are that are above-named we shall find them to be not only Archbishops and Bishops but Vicar-Generals or any other person or persons whatever exercising Spiritual or Ecclesiastical Power by any Grant Licence or Commission of the KING's Majesty and if the Ecclesiastical Power be restored to Vicar-Generals and to the KING's Commissioners then the Power extraordinary is restored too for 't was an Extraordinary Power that belonged to them which can no sooner be yielded but 't will follow that no more Power is taken from Vicar-Generals and the KING's Commissioners than what was taken from Archbishops Bishops c. which is further confirmed by that Clause in which it is Declared That the KING's Supremacy in Ecclesiastick affairs shall not be abridged or diminished On which I thus argue That that Sence of this Law by which the KING 's Ecclesiastick Supremacy is abridg'd or diminished is not the true Church of England Sence But the holding that all extraordinary Jurisdiction is taken away abridges the KING's Supremacy For as our Church-men will have it before this Statute was Enacted it 's most manifest that the Power of making Vicar-Generals and Commissioners for the exercise of Extraordinary Jurisdiction and summoning Men out of their own Diocess belong'd to the King's Supremacy Ecolesiastical and therefore it still doth appertain to it which cannot be satisfied by Commissioners of Delegates and Commissioners to visit in places exempt For as I have already observed Vicar-Generals whose Jurisdiction is Extraordinary are named amongst the rest But to follow our Author If we enquire after the Special Reason that moved Queen Elizabeth to set up the High-Commission Court we shall find that though it was to the end she might Deprive the Popish Priests yet by the Instigation of the Clergy it was for many years together turned against the Protestant Dissenters and according to Church-of England-Law it may as well be turned against themselves For the Powers Authorities and Jurisdictions annexed to the Imperial CROWN of England were for the Redressing Ordering Correcting Restraining and Amending any Offences Contempts and Enormities whatsoever which by any manner of Spiritual Authority and Jurisdiction ought to be reformed and therefore if a Church-of England-man be guilty of any such Offences Contempts or Enormities he falls under the Ecclesiastick Censure as well as a Roman Catholick or Protestant Dissenter and for the same Reason One Prince exercises this Authority against Offenders of one sort another Prince may use the same Power for the amending the Offenders of the other Denomination And Who can consider how our Church-men that they might the more severely handle the Protestant Dissenter have exalted the Prerogative and not wonder that they should complain on the milder Exercises of it But whatever they may think it 's impossible for them to open their Mouths in this matter unless they bring upon themselves the greatest Odium and Contempt imaginable for when they blame the
Article His MAJESTY may Command all the Clergy throughout this Kingdom to give in their Assent and Consent to every thing contained in His late Gracious Declaration of Indulgence and Deprive all that Disobey The power of Making new Articles and requiring Subscription His MAJESTIES Royal Predecessors have exercis'd and the same His MAJESTY may as well now do For the Matter of His Majesties Declaration has greater Countenance from Scripture than the Ceremonies can pretend to Ay the very Dispensing Power it self is no more than what many of our Clergy have for many Years together preached up for Sound Doctrin Thus you see how the KING may stretch His Prerogative to an higher Peg than yet he has done but Would there not then be a Brave Work among our Clergy who on such an occasion would be obliged to give in Assent and Consent to Liberty of Conscience or submit to a Deprivation I will say it again If His MAJESTY by His Regal Authority should impose a Subscription to His late Gracious Declaration He might most Righteously according to Church-of England-Law Deprive all that refuse to Obey I know that of late some have very confidently said That Deprivation is no Ecclesiastical Penalty for the Benefices of which they are Deprived is a Property and by Magna Charta no one can be disseized of it without a Tryal by a Jury of his Peers I will therefore in short give you the Resolution of our Judges in this matter and leave it to the impartial Reader to judge as he shall see cause Robert Cawdrey the Parson of the Rectory of North-Luffenham in the County of Rutland was by the Queens Ecclesiastical Commissioners deprived of his said Benefice for preaching against the Book of Common Prayer as also for that he refused to Celebrate Divine Service according to the said Book which said Sentence of Deprivation was given by the Bishop of London cum assensu A. B. C. D. c. collegarum suorum But whether the Deprivation was void in Law was solemnly and oft-times debated at Bar by Council and at the Bench by the Judges and after great and long deliberation and consultation had with the rest of the Judges the Case was in the Term of St. Hilary in the 37 Year of the Queen adjudged It was argued by Cawdrey's Counsel That the Deprivation was void for his Offence was against the First of Elizabeth and therefore ought to be punished according to the moderation of that Act which was not for the First Offence an ipso facto Deprivation but only the Loss of the profits of his Ecclesiastical Livings for One year and Six months Imprisonment But Deprivation was for a Second Offence committed after he had been judicially convicted of Record by Verdict of Twelve men or by Confusion or notorious evidence of the Fact. But although this was the method prescribed by the Statute of 1 Elizabeth yet because there was a Proviso in the said Act That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Iurisdiction should have full Power and Authority by vertue of that Act as well to enquire in their Visitation c. of all and every the things above-mentioned done and committed or perpetrated within the limits of their Iurisdiction and Authority and punish the same by Admonition Excommunication Sequestration or Deprivation and other Censures and Process in like Form as heretofore had been used in like cases by the Queens Ecclesiastical Laws It was adjudged That the Ecclesiastical Judges might Deprive such Person Vicar c. as shall deprave or not observe the said Book as well for the First Offence as he might have done by the Censures of the Church and the Ecclesiastick Laws as if no form of punishment had been inflicted by that Act and are not bound to pursue the Form prescribed by the said Act which is to punish the Offender according to the Temporal Law. Thus the Judges have Resolv'd it That Deprivation is one sort of Ecclesiastical punishment and may be inflicted without an Observing the Form prescribed by the Temporal Laws Which is enough to silence the Clamours of those Church-men who now cry up Benefices to be such a Property that the punishment by Deprivation cannot be justly inflicted unless the process be in like Form as is used by the Temporal Laws Furthermore as His Majesty may exercise this ample Power and not recede the least from Church-of England Law even so his Doing it would not interfere with his Promise And if we may judge of things by the Sentiments our Church-men have heretofore had of Deprivations no hurt is hereby done unto their Church For when the old Puritans in Q. Elizabeths and James the First 's days and the Nonconformists in Charles the Second's Reign were Deprived these Deprivations were esteemed by the Governing Clergy no Damage but a great Advantage to the Church for by them She was delivered from all those that differ'd from Her in a Ceremony On the other hand therefore if His Majesty should impose Subscription to the Late Declaration though many be thereupon Deprived yet no more harm can be done the Church of England now than by the former Deprivations And if the Opinion of a very Learned and Moderate Church-man may be of any value the Difference between these and the Old Deprivations must be only this By the Old the most Pious Learned and Peaceable that scrupled the Ceremonies were turn'd out to the prejudice of Religion But by this New one none but the Debauched and Persecuting part of the Clergy to whom we may impute all our Late Miseries will be laid aside to the advancing the Nations Peace If then the KING may exercise his Prerogative and go so far as is here said without doing any hurt to the Church What ground is there for the present Noise His MAJESTY's Commissioners have indeed suspended One Bishop for his Disobedience towards whom they have exercised the greatest patience in not proceeding to a Deprivation And what have they done more than amove the Fellows of one Colledge for their insolent oppugning His Majesties Supremacy and a making 'em uncapable of compassing their bad designs Where then is the least Colour for the Jealousies these men endeavour to beget in the minds of His Majesties Subjects On the whole Whoever will consider how much according to Church-of England-Law the KING may do and yet notwithstanding the many Provocations some Hot-Church-men have given Him How little He has done I say whoever will carefully observe thus much will see cause enough to conclude That His Majesty's Clemency in the Exercise of His Supremacy bears proportion to His Greatness It 's amazing to observe how industriously some of our Clergy and their Creatures struggle how strenuously they labour to misrepresent His Majesty's most Glorious Designs how many Seditious Pamphlets they do daily emit and at what charges they are to propagate ' em