Selected quad for the lemma: lord_n
Text snippets containing the quad
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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