Selected quad for the lemma: england_n
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A52594
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A discourse of ecclesiastical lawes and supremacy of the kings of England, in dispensing with the penalties thereof by Mr. Philip Nye.
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Nye, Philip, 1596?-1672.
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1687
(1687)
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Wing N1490A; ESTC R41353
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35,351
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41
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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
a worse condition on these accounts then in their civil interest and that upon a threefold account 1. The Secular Lawes and Statutes made in behalf of the Subject are often upon further Deliberation and Experience of inconvenience altered and repealed whereby the Subject hath ease It is ordinarily seen in our Civil concerns that some ACTS of Parliament that partly for their severity or upon some other account passed as doubtful whether fit to remain as standing Lawes are therefore limited to a certain Time and after which to expire and cease The severe Act of 35 Eliz. which in the Process of it reached mens lives when first passed was to remain a Law but to the end of the next Session of Parliament which in regard of some doubt it seems whether in force or not is declared by this present Parliament to be so and that it ought to be put in due execution And now at this time there is a Minister of the Gospel under the Sentence of that Act and for transgressing that Law had lost his life had not His Majesty interposed by his Prerogative A wise Statesman once advised and expressed himself thus I ask why the Civil State should be purged and restored with good and wholsom Lawes made in every 30 or 40 years in Parliament providing Remedies as fast as time breedeth Mischiefs and comrariwise the Ecclesiastical State should still continue upon the dreggs of time and receive no alteration Now for these many years we have heard of no offers of Bills in Parliament is it because there is nothing amiss Sir Fr. Bacon 2. In that all Proceedings in Ecclesiastical Courts are ever to the utmost rigour and letter of their Canons and Orders There is no Chancery or Court of Equity to appeal to for redress but in some few Cases as in causes Testamentary Matrimony Divorces c. specified 24 H. 8. Matters wherein our Estates are touched but in matters of Conformity and such Cases wherein our Consciences are concerned we are left destitute 3. Men are upon this peculiar disadvantage in these spiritual Courts who are impeached for Non-Conformity to their Canons and Orders in that their Adversaries and those that are Parties for the most part are their Judges This Sir Fr. Bacon in his Considerations condemneth as a great Injustice So that it is evident considering the Nature of Ecclesiastical Constitutions and how managed with us in this Nation how necessary it is that some Power be placed somewhere by which we may be relieved when exposed more than others to such extremity of rigour For otherwise as Conscientious men are more disposed to doubts and scruples in the way of duty in this kind so to less Mercy and Indulgence from our Superiors CHAP. III. That our relief is from the Jurisdiction and Power in His Majesty to Dispense and Exempt for in his hand this balance is placed which is that we shall insist upon in the next place 1. THis Prerogative and Power to exempt from Ecclesiastical Lawes is in the Soveraign for the confirming whereof not to insist upon what was acknowledged by Eleutherius touching Lucius our first Christian King that he was Vicarius Dei in regno suo in reference to matters to be reformed or what is mentioned concerning the Lawes and Practice of King Edgar and Edw. the Confessor namely of the first meae solicitudinis quieti eorum consulere de quorum moribus spectat ad nos examen and of the other from whom it 's said much of our Lawes is derived in describing the King's office he saith Rex ad hoc est constitutus ut regnum terrenum Populum Dei Ecclesiam regat ab injuriis defendat maleficos ab ea evellat destruat penitùs disperdat and much of the like nature that might be urged from Antiquity but to come nearer home I bring the Testimony of the Clergy in Convocation or the representative Church of England who make it so great a Duty to acknowledge this as they have expressed their severity thus Whosoever shall affirm the King's Majesty hath not the same Authority in Causes Ecclesiastical as the pious Princes of the Jews and the Christian Emperors obtained let him be excommunicated ipso facto and not to be absolved but by the Arch-Bishop of Canterbury Canons of the Convocation 1603. I shall joyn with this Testimony that of another Councel namely that met in the Star-Chamber 2 Jac. made up of all the Judges and Persons learned in the Law summoned by King James for resolution in some Ecclesiastical Cases whereof this of His Majesty's Prerogative was one their resolution you have in these words The King without the Parliament may make Orders and Constitutions for the Government of the Clergy and punish those that disobey and refuse to submit and this their resolution was ordered to to be registred and Recorded in the several Courts of Justice 3. And from time to time the Kings and Queens of England have assumed and exercised this Power 1. In general the whole body and systeme of Ecelesiastical Lawes and Canons are published by the Synod of the Clergy from time to time without any particular Parliamentary Sanction And yet have not these Canons their Authority from the Synod or Clergy met in Convocation For Canons concluded by the Province of Canterbury only cannot as such oblige the Clergy of the Province of York who had no Representatives or Clerks sitting in that Synod or Convocation that met Anno 1584. 1597. and 1603. and yet its Canons obliged to subjection the Archbishop and Clergy of York as well as those of 1640. where were the Representatives of both Provinces It is therefore the ROYAL authority expressed in the Letters Patents affixed to these Canons that gives them Power and they are therefore termed Regiae leges Ecclesiasticae 2. Instances may be produced of several Injunctions Advertisements Declarations and other Edicts and Requirements from Sovereign Power by His Majesty's Predecessors You have the Injunctions of Edw. 6. 1547. and Queen Eliz. 1559. with Articles of Visitation thereunto adjoyned They license Ministers to Preach suspend also from Preaching Edw. 6. also established a Liturgy or publick form of Prayer to be used throughout the Kingdom King James likewise gives faculties confirms a new body of Lecturers throughout England Preachers that were neither Vicars Parsons nor Curates These Instances altho not express of what these Powers have dispensed with or indulged yet are pertinent upon this account What Sovereign Power is thus put forth in Constitutions Injunctions and Directions c. in Ecclesiastical Matters may in like Proportions be exemplify'd in Exemptions Dispensations c. as with Parliaments and other Councels vested with Authority the Power to repeal Lawes and Statutes is as large as that Power by which they Enact and Establish them For Example King James might by his Prerogative confirm and establish a new order of the Clergy which was our last instance he might by the same