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Statutes made in behalf of the Subject are often upon further Deliberation and Experience of inconvenience altered and repealed whereby the Subject hath ease It is ordinarily seen in our Civil concerns that some ACTS of Parliament that partly for their severity or upon some other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
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
is not then to dispense with the Penalties in Ecclesiastical Lawes too great a trust to be reposed in any one hand In Answer I shall endeavour something to unfold 1. In what sense Religion is the Concern of a Nation 2. The Nature of this Trust 1. How much Religion c. The moment and weight of a Matter in our Deliberation hath its proportion either as under an absolute or respective Consideration Wisdom is better than Riches in it self absolutely but not in respect to the support of present life The knowledge of God and Divine things is better than to know the virtue of Drugs and Plants but not so in respect to the study of Physick So Religion and the Worship of God is the chiefest and better part in it self considered but in its respective Considerations as to the faculty of a particular Person to Community of men for the advance of Civil Affairs there are other qualifications and inducements of greater Consequence and more directly and immediately tending to the being or well-being thereof That there be no mistake in this great Concernment I further distinguish There cometh under the Notion of Religion the Holiness and Righteousness that is of the Moral Law Principles whereof are in all mens natures and attended in their actings by a natural Conscience 2. Gospel Duties directed and ordered by a supernatural light no footsteps or Principles whereof are found in us For the former Religion in that first sense as the Knowledge of God Conscience of an Oath Justice and Righteousness in our dealings c. are such things wherein the well-being of Kingdoms and Commonwealth is much concerned But Religion as it stands in exerting supernatural Principles and in Duties termed the Commands of Christ as the other the Commands of God Jo. 15. such as Faith Repentance Sacraments Discipline and the like Gospel-Ordinances In the Duties under these Heads considered and as distinct from Moral Duties there is little or nothing directly and immediately contributed by them to mens Civil interests further then where these supernatural Vertues are planted in mens Minds the Moral Duties of Piety and Honesty do more plentifully abound and are in exercise As those Morals do more immediately concern the Commonwealth so the Lawes thereof are principally drawn forth out of them especially Second-table Duties forming and moulding them into municipal Lawes under Penalties and incouragements greater or less as in the Wisdom of a State is judged most conducing to the welfare thereof For these Gospel-Mysteries 't is otherwise for as they contribute not to us in our Civil Government otherwise than as before-mentioned so is there little contributed by the Wisdom or Authority of any State advantagious to the Gospel but Protection or being a defence upon the Glory Bishop Bilson states it well Princes saith he command that which Chaist the Sovereign Lord and Head of the Church commands which is all the Power we give to Princes Supremacy pag. 227. And in the Page before By Governors in Ecclesiastical Matters we do not mean Moderators Prescribers c. but Magistrates bearing the Sword to permit and defend that which Christ himself first ordained and appointed but to return If Adam had stood all Common-wealths had been prosperous and flourishing and yet no Christ no Faith Repentance nor any Gospel-Worship known or practised and since the fall you have had well-governed Kingdoms and States among Turks Heathens that never received Christ or Gospel-Worship It is with States as it is with particular persons in Commerce another man's Estate or Trade or Credit or any other Civil concern with whom I have to do is not prejudiced or bettered by omission or practice of what is a meer Gospel-Duty If a man I deal with be unjust ly steal c. my worldly interest is prejudiced hereby but whether he repent for this or exercise Faith on Christ for forgiveness and humble himself I am neither gainer nor loser in my Civil concern Now it is Gospel-Worship and Gospel-Religion we profess in this Nation If then the Duties themselves performed are of no greater onsequence in respect to Persons with whom we converse or the Civil State where we live the Modes Forms and Ceremonies of such Worship cannot be of such moment or trust in the manage of them And let me add much less can there be any such special advantage or detriment to our State-Concernments in this or that particular external form of Worship or Government that one should be retained by us with so much Zeal and Contention and from an alteration whereof we should be so much deterred which evidently appears in this how prosperous and flourishing hath this Nation been in their Civil concerns under Episcopacy Set Liturgies Ceremonies c. and as great Prosperity in other Christian States where these have altogether been disallowed Nor is this any dishonour to the Gospel more than to the Kingdom of Christ when it was said not to be of this World or to his Person or Officers that they contribute no more to the settling of Civil Rights and Interests Luke 12.13 or to Gospel-Weapons which being Spiritual and not Carnal have no edge to cut off mens Liberties Estates or Lives 2. The Nature of this Trust The Lawes and Institutes by which these Ecclesiastical Matters are to be managed are appointed and established for substance by the Wisdom and Authority of that one Law-giver Christ Jesus The Application of these Lawes in respect of Circumstances for the well and comfortable enjoying Gospel Ordinances is all that any Humane Wisdom hath to do in them the trust whereof may be placed in the hand of a Wife and Prudent Prince Again there is Liberty of an after-Judgement to be made by him that is to practise in whatever is in the concerns of Religion commanded by men Thence such Lawes require not such simple and peremptory obedience if conformable to those rules required in the Word Obedience thereunto is with respect unto God as well as Man if otherwise that then ought to be left to the Subject which the Apostles claimed Acts 5.29 Now altho Matters of Religion and the Concernment of it be great things considered in it self and accordingly is the trust yet what of it falleth under the hand of a Civil Power is neither in it self nor in its trust so great Because the greatness of this trust sticks generally in mens minds especially when in the disposal thereof it depends upon the will of one man to remove this or the like stumbling block we will suppose failings in the management of the trust as great as rationally can be imagined 1. Suppose his Majesty should refufe either by himself or Parliament to enjoyn any thing of Ceremony or Circumstance about these Externals in the Worship and Service of God. Or 2. Suppose he should dispense with all Injunctions and leave the People of God to a full Liberty in the observance of them and call these high defects and failings in