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
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.
present Commissioners for what they have done against the Bishop of London and Magdalen Colledge they do condemn themselves for exercising the greatest Severities against the Puritans contrary as now they themselves will have it unto all Law For from what has been already said it is apparent That the same Power His Majesty's Predeceffors exercis'd belongs unto His Majesty and that gives Strength to each Horn of the Dilemma In a word then our Church-men must confess they have been guilty of a very great errour in turning the Royal Thunder against the Old Puritans in Q. Elizabeths and K. James the First 's days Or that they acted very Righteously in what they have done against them If the Former why do they not publish so much to the World Why do they not confess that their Forefathers have sinned and gone astray and that the Puritans were most Unjustly persecuted by their beloved Mother If the Latter if the Church of England in those days did but what was Just seeing many Hundred of the Puritans were spoiled of their Benefices by the Royal Power the KING may as Righteously proceed on the same bottom Fourthly The Fourth thing to be done is this viz. That His MAJESTY may exercise His Prerogative in Matters Ecclesiastical in a more ample manner than yet He has done The Author of the Letter affirms That the Power of making Canons for the Government of the Church was no otherwise in the CROWN than the Power of making Temporal Laws But the mistake in this place is as great as some others he is faln into about Appeals and Investitures the first of which notwithstanding what he saith to the contrary is to the KING without a Parliament and decided by his Delegates or Commissioners of Review the Last by the KING solely who by the delivery of the Staff and Ring did usually invest as our Histories abundantly confirm In like manner touching Laws about Rites and Ceremonies it lies in the KING's Power without a Parliament to make ' em So saith Dr. Zouch and Dr. Cosin and there is an Act of Parliament Rex possit novas Leges condere circa ceremonias ritus cum confilio Metropolitani vel Commissariorum in Causis Ecclesiasticis Zouch Descrip Jur. Eccles Par. 1. Sect. 3. Cos T. 6. expresly recognizing this Power to be in the KING the Words of which are If there shall happen any Contempt or Irreverence to be used in the Ceremonies or Rites of the Church the Queen's Majesty with the Advice of Her Commissioners in Causes Ecclesiastical or Metropolitan may Ordain and Institute such further Ceremonies or Rites as may be most for the Advancement of GOD's Glory the Edifying of His Church and due Reverence of Christ's Holy Mysteries and Sacraments 1 Eliz. c. 2. And as the KING with His Ecclesiastical Commissioners may make New Laws about Ceremonies so without a Parliament He may make Orders or Constitutions for the Government of the Clergy and deprive the Disobedient Thus much is affirm'd by those Protestant Divines who have Written in Defence of the KING's Supremacy particularly by Dr. Harris in Answer to Becanus the Jesuit where he is express in assuring us That the Right and Power by Regal Authority to make church-Church-Laws as that GOD should not be Blasphemed that GOD should be pacified in a Fast and Honoured in a Festival-day and all such as we read to have been made in the Code Authenticks and Capitulars by Constantine Theodosius Justinian and Carolus Magnus belongs to our Kings Moreover to Delegate such as should judge of the Laws so made Touching Persons To administer Justice to all of all sorts To deprive the High-Priest if he do deserve of his Priesthood These by Divine Right are the Rights of Regal Primacy viz. whereby the KING may 1. Be called the Supreme Head of the Church 2. Call Councils and preside in them 3. Make Laws Ecclesiastical 4. Constitute and Depose the High-Priest 5. Bind His Subjects by Oath to Keep the Laws by Him made To conclude Hereby may the Adversaries see that Regal Primacy is founded on the Scriptures and propagated from the First Religious Kings under the Old to the First Religious Emperors and Kings and so to Our Sovereign Lord K. JAMES under the New Testament and in that long distance of time nothing impaired or diminished So far Dr. Harris But before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer it was agreed That the KING without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation Ex Officio without a Libel is good Besides it must be further observ'd That as it was held both by the Church-of England-Divines and Lawyers Noyes Reports Fol. 100. to be in the Power of the KING to make Constitutions for the Government of the Clergy and Deprive the Disobedient In like manner our KINGS acted accordingly and impos'd a Subscription to the Three following Articles I. That the KING's Majesty under GOD is the Only Supreme Governour of this Realm and of all other His Highnesses Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal and that no Forreign Prince Person Prelate State or Potentate have or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within His Majesties said Realms Dominions and Countries II. That the Book of Common-Prayer and of Ordering of Bishops Priests and Deacons containeth in it nothing contrary to the Word of GOD and that it may Lawfully be used and That He Himself will use the Form in the said Book prescribed in publick Prayer and none others III. That He alloweth the Book of Articles of Religion agreed upon by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation holden in London in the Year of our Lord God 1562. And that He acknowledgeth all and every the Articles therein contained being in number Nine and Thirty besides the Ratification to be agreeable to the Word of GOD. To these three Articles all Persons received into the Ministry were bound to Subscribe in these Words I N. N. do willingly and ex animo Subscribe to these Three Articles above-mention'd and to all things that are contained in them This Subscription was imposed by the Regal Authority without a Parliament and many Hundreds who could not Subscribe were to the Ruin of them and their Families actually deprived And although this Subscription was exacted during the whole Reign of James I. and Charles I. yet until the Restauration of Charles the 2d it had never a Parliamentary Establishment Seeing then it 's past doubt That His MAJESTY's Supremacy is as ample as that of any of His Royal Predecessors what Q. Elizabeth and K. James the First have done that His present MAJESTY may now do and without a Parliament Command a Subscription to other New Articles and Deprive the Disobedient To instance in one
But yet His Majesty with the greatest steadiness pursues His Royal Purposes of Grace to the whole Kingdom to all Parties in it even to the Church of England that She continue in the Enjoyment of all that is dear unto Her so far as it 's consistent with the true peace and quiet of the other great parts of the Nation Let things be restored to the Ancient Constitution let all English-men as such enjoy the Priviledges that belong unto 'em Let them all sit down with peace under their own Vines and be equally concern'd in the Services the Government calls for and Encouragements it gives and His Majesty is satisfied The enclosing the Government and narrowing it so that none but Men of one Religious Perswasion can have a share in it hath as woful experience teaches us proved fatal to this Nation It hath spoiled our Trade depopulated the Kingdom and exhausted the Nation 's Treasure carrying it unto a neighbouring People Let us then be content that His Majesty brake down the Enclosures and set the Government on a larger bottom that all True English-men may have a share in it Let Liberty and Property and every man's Religion be secured and we shall soon be the happiest People under Heaven I say Let every man's Religion be secured as much from Violence as the most Sacred part of our Civil Liberties for this is the thing His MAJESTY Desires and Where then is our danger His MAJESTY offers to do what never any of His Royal Predecessors ever did before him towards the establishing his Peoples Peace And shall we be so unsensible as not to Bless GOD and accept of the Offer Here is no Trusting in the Case His MAJESTY discovers so much Sincerity and Integrity in what he saith that he will leave no room for Trust It is but to accept of a Magna Charta in which our Religion is secured from all danger which can never be so long as Penal Laws and those Tests whose matter is meerly Religious be kept up and we are immediately possest of all we can reasonably desire Let the same Instrument that takes away Penal Laws and Tests secure our Religion and by the very Breath that the one is destroyed the other will be established That a Sufficient Security may be found out is not doubted by the most wise and thoughtful What that is is the part of a Parliament to consider but if we have as good or better Security for our Religion to be content to part with Penal Laws and Tests is both the Duty and Interest of every true English-man That His Majesty will give us as good Security as can be reasonably desired is the Import of His Late Gracious Declaration which he has on divers occasions oft publickly repeated and it hath been fully proved That His Majesty's Ecclesiastical Commissioners have done nothing that is inconsistent with It. Whence it clearly follows That there is nothing of Argument in our Hot-Churchmens Clamours about this Courts Proceedings against the Taking off Penal Laws and Tests In a word from what has been already urg'd it 's most apparent I. That the Court held by His Majesties Ecclesiastical Commissioners is according to the Sentiments of Church of England-Lawyers and Divines a Legal Court. II That the Prerogative recognized by the Church-of England to be inherent in the CROWN is much larger than what His Majesty has yet exercised For 1. The KING with His Commissioners Ecclesiastical may make New Laws about Ceremonies and instead of Three impose Thirty more The Power being lodg'd in the KING He is the most proper Judge of their Decency and Number and for the same Reason that Three are imposed if His Majesty judges it meet Thirty more may be added to the present Imposition 2. The KING with His Commissioners Ecclesiastical may enjoyn a strict Subscription unto New Articles and in the present juncture require the Clergy to give in Assent and Consent unto them on Pain of Deprivation And if His Majesty should oblige our hot Church-Doctors to Subscribe Assent and Consent unto Liberty of Conscience What a condition would these Violent Men be plung'd into They must either renounce their persecuting Principles or part with what is as dear unto them viz. their Benefices 3. His Majesty may proceed against the Bishop of London to a Deprivation for when ever any one falls under Suspension it has been the Custome of the Church of England stifly to insist on a Submission and where that could not be obtained they never stopt one point this side a Deprivation Now it 's plain that it was the Bishop's Duty to obey the Mandate of his Supreme Ordinary and suspend Dr. Sharp and seeing he refused to Discharge his Duty he was by their own Laws justly suspended and it 's as certain that His Majesty exercises the greatest Clemency in waiting so long for his submission 4. If His Majesty should deal with some of the Magdalen-Fellows after that manner the Church-of England-Judges advis'd King James the First to proceed against the Old Puritanes He might handle 'em more severely than yet his Commissioners have done For their endeavouring to fill the Minds of His Majesties Subjects with Discontents and Jealousies is an Offence Fineable at discretion and very short of Felony or Treason in the Punishment By all which it 's manifest that His Majesty has not stretched his Prerogative to the utmost length he might and yet keep within the Church-of England Circle and it 's also as clear that by reason of this Power His Majesty has all the Conformable Clergy under His Girdle to which we may add that on the account of the many Penal Laws against Protestant Dissenters They also are as much under the Power of their PRINCE for which reason we may be assured that if His Majesty design'd any thing more than the Peace and Quiet of all His People if he had further resolv'd to have set up Popery in Dominion to the Ruining His Protestant Subjects the only time of doing it would be before the Penal Laws and Tests are taken off and a Magna Charta for Liberty of Conscience is Established For Now the KING can either Muzzle all the Clergy or Tyâ—up the hands of Protestant-Dissenters and get a Parliament that shall set up Popery It 's not to be doubted but that 't is more easy Now than it can be after a Magna Charta for Liberty of Conscience is obtained for Then the persecuting principle will be Damned the Church of England will have fresh security for her standing and the Protestant-Dissenter be deliver'd from the Awe and Dread of Penal Laws And every Man whose desire is more for Peace than Broyles and Confusions be they Protestant or Roman Catholick they will be for a continuing the Magna Charta To deliver freely my Conscience in this case it is this His Majesty designs to make us happy by setting us all at ease under His Government and the utmost he desires is That the Roman Catholicks with His other Subjects may enjoy the Free Exercise of their Religion and have an equal share with others in the priviledges of Englishmen and that thus much may be compassed the King would have Matters so setled that it may never be in the power of any one Party to hurt the Religion of the other and that all Parties may be secured from Fears and Jealousies His Majesty calls for the help of a Parliament that in a Parliamentary-way Men of every Religion may have the greatest security the Wit of Man can invent for Liberty of Conscience All those Pamphlets therefore that are daily spread abroad chiefly by those who had the greatest hand in the late Persecution do hinder the Nations Peace so far as they obstruct this His Majesties most Gracious Design and are to be consider'd as such by all good Men who when they weigh things will I doubt not see cause to do their utmost that We may have such a Parliament as will concurr with His Majesty in making us Happy FINIS