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 that 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 SECT 2. 2. This Ballance hath always been trusted in the Hand and annexed to the Sovereign Majesty of every State for this Interest doth little vary but remaineth in a manner the same in all Republicks 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 stiled Imperial this Power is inseparably annexed thereunto which needs little proof it being confirmed by the Oath of Supremacy An Oath is the End of a Controversy 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 Law. When an Act say both those two Learned Judges Cooke and Rolls forbiddeth under a Penalty in case it may be inconvenient to divers particular Persons in respect of Circumstances the Law gives Power to the King to dispense therewith And in like Cases or upon other Considerations equal he may Dispense License Pardon c. Yea although those Laws have been passed by his Majesty's Royal Assent formerly and which is more a Clause inserted in the Act that the King's Licence or Dispensation in this or that Case shall be void Yet it will be no Bar to such Prerogatives as are inherent and originally inseparable to his Royal Person but he may give Licence with a Non Obstante thereunto A learned Serjeant in his Nomotechina hath these words The King by a Clause of Non Obstante may dispense with a Statute Law if he recite the Statute though the Statute say such Dispensations shall be merely void And he may License Things forbidden by the Statutes as to coin Mony which is made a Capital Offence by the Statute and was before lawful for that it is but malum prohibitum but malum in se as to leave a Nusance in the High-way he cannot license to do but when it is done he may pardon it but where the Statute saith his License shall be void which the Civilians call Clausula derogativa there it must have a Clause of Non Obstante that is to say this Clause notwithstanding any Statute else it is not good And says the same Author He may in respect of his Supream Ecclesiastical Jurisdiction exempt some from the Jurisdiction of the Ordinary and dispense with others in things which the Ecclesiastical Law prohibits upon the same ground that they are not mala in se but prohibita I hold clear saith Judg Hobart that though the Statute says That all Dispensations c. shall be granted in manner and form following and not otherwise that yet the King is not thereby restrained but his Power remains full and perfect as before and he may still grant them as King. The King may remit the Penalty or Punishment of those Laws which he hath no power to dispense with as where what is forbidden by the Law is Malum in se saith the Serjeant in his aformentioned Discourse of Law much more then when what is forbiden is only Malum prohibitum The Statute indeed of the 9th of Edw. 2. Cap. 7. enacts That no Letter shall proceed from the King to discharge an Excommunicated Person but where the King's Liberty is prejudiced But as this Statute it self proves the Law and former Practice so it takes it not away since the King's Liberty of discharging such Persons used before is preserved by the same Statute CHAP. II. Of the Prerogatives and Regal Powers in Relation to Ecclesiastical Laws and Matters of Religion SECT 1. 1. REligion in the moral Parts thereof the Precepts and Commandments of God the Institutions and Ordinances of Christ these are not subject to any Humane Wisdom or Power The Apostles that were of higher Authority in these Affairs than any on Earth went no farther but as 1 Cor. 11.23 What I have received of the Lord that I delivered unto you To make Laws in Spiritual Matters that are such by the Light of Nature that Men may be moved to Duty and act according to their Light we yield to the Civil Magistrate as he is Custos utriusque Tabulae 2. There are Matters of Circumstance also and external Forms in Worship tending to Order and Decency These and the like are made by our Laws to depend upon the Power and Ordering of the Prince This Distinction you have laid down as Law by Judg Hobart his words are these Tho it be de Jure Divino that Christian People be provided of Christian Offices and Duties of Teaching Administration of the Sacraments and the like and of Pastors for that purpose and therefore to debar them wholly of it were expresly against the Law of God yet the Distinction of Parishes and the Form of furnishing every Parish Church with his proper Curat Rector or Pastor by the way of Presentation Institution c. as is used diversly in divers Churches and the State or Title which he hath or is to have in his Church or Benefice is not a positive Law of God in point of Circumstance And we know well that the Primitive Church in its greatest Purity were but voluntary Congregations of Believers submitting themselves to the Apostles and after to other Pastors to whom they did minister of their Temporals as God did move them Government is a Beam of Divine Power and therefore he proceeds saying If a People will refuse all Government it were against the Law of God but if a Popular State will receive a Monarchy it stands well with the Law of God. In the Case of Glover and Colt against the Bishop of Coventry and Litchfield From all this the Judg seems to confirm his Distinction by way of Comparison thus As in Humane Affairs Government in the General and Essentials of it that one Man be Subject to another Man in an orderly way is necessary and Jure Divino and not in Man's Liberty or Dispose But for the Modes and Forms of Government and like Circumstances it is left to the wisdom and choice of Men and the conduct thereof So in Matters of Religion what is not Jure Divino such external Forms and Rites tending to a more orderly and decent administration in the Worship and Service of God our Law judgeth the Magistrate hath the ordering hereof in each Nation according to the Manners and Tempers of the People which is Various And in particular the Disposing of Pastors and People for the more convenient and orderly Service and Worship
THE King's Authority In DISPENSING with Ecclesiastical Laws Asserted and Vindicated By the late Reverend PHILIP NYE A Congregational Divine LONDON Printed for H. N. and Nathanael Ranew at the King's Arms in St. Paul's Church-Yard MDCLXXXVII TO THE King's most Excellent Majesty JAMES By the Grace of God Of England Scotland France and Ireland KING Defender of the Faith c. May it please Your Majesty YOUR Gracious Declaration for Liberty of Conscience is such an instance of the tender care You have of each Man that hath the happiness to be Your Subject that it as well exacts the Service of every one in particular as the Universal Applause Great Sir Having no better opportunity to express my Gratitude I lay at Your Royal Feet these Sheets wrote by my deceased Father occasioned by his late Majesty's Declaration May they be instrumental to promote the Designs of Your Princely Clemency May every Individual in Your Kingdoms enjoy their Consciences and Property May your Parliaments serve you in all those healthful Laws which may appease our Differences and secure our Peace so that not only the present Age but likewise Posterity may bless your Reign for introducing so compassionate an Indulgence These Blessings for you and us and that you may live long and happily in the pursuance of these merciful and noble Principles are the Prayers of Your Majesty's most obedient Subject HENRY NYE A DISCOURSE of Ecclesiastical Laws and Supremacy of the Kings of England in Dispensing with the Penalties of such Laws CHAP. I. The Case and State of the Question THE King's Power and Jurisdiction in Ecclesiastical Affairs may fall under a three-fold Consideration as First put forth by himself Secondly by Commission granted to Ecclesiastical Persons and exercised in those Courts we term Spiritual or Ecclesiastical Thirdly Or such Affairs are managed and ordered by him in Parliament and the Authority thereof The Form in which these Ecclesiastical Laws are expressed unto 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. Meerly to advise and consent imply no more Authority in the establishment of Ecclesiastical Laws than what was put forth in the Convocation in their Canons but it being added by the Authority of the same this Authority thus mentioned may be construed either relating to the Advice and Consent of the Lords and Commons in Parliament a Suffrage more than an Advice or bare Consent for it implieth 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 relating to King Lords and Commons and which is likely for Consultations of Parliament tho concluded by Vote yet become not formally a Law until his Majesty hath given his Royal Assent And in this sense Ecclesiastical Laws and Orders which are Enacted and Established by Statutes have as formal a Sanction being not only by Authority of the King but by Lords and Commons assembled in Parliament as other Laws wherein our Civil Interests are concerned namely a joint and not the single Power of either This being granted rather than needlesly to dispute those highest Interests and thence also inferred That as these Ecclesiastical Laws 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 To this I say briefly Altho Men may be Tenants in Common yet none can be joint Tenants with the King. These Powers are not equal the King hath the Supremacy and is thereby enabled to such Acts and Orderings about the Penalties of our Laws 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 Ecclesiastical Matters as by the following Discourse will appear SECT 1. This Power and Superiority exercised by the Kings of England in relation to the Penalties of such Penal Laws of both sorts shall be spoken to in these two Particulars I. That such an Authority and Supremacy is necessary and ought to be placed in some Hand II. That it is a Dignity which hath always been placed in the Kings and Queens of this Realm I. For the former In all Polities and Forms of Government as there is a Rule which is to be the Measure and Square 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 judg 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 and the Proceedings there are not according to the strict Terms of Law but secundum equum bonum as the Merit of the Case in it self may require 1. For Laws constituted for a whole Nation universally to be submitted to 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 others Parliaments in their Laws going by the Rule of Ad ea quae frequentius accidunt c. and better an inconvenient Mischief than 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 present Condition In a Common Wealth the Ease and Benefit of each particular Person of what Degree or Condition soever is to be consulted but where Laws are executed in their full rigour and no Mercy or Indulgence to particular Persons in special and unusual Cases it will not be so God himself who knoweth every Man's Heart yet some of his Laws that are given in 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 Laws is that of Mark 2.26 in the Case of Shew-bread to be referred And the Pope who assumes to himself a possibility not to Err yet how doth his Republick abound in Courts for Faculties Dispensations Indulgences c. 2. It 's also to be considered there are no Societies of Men but may err in their Councils Laws made in one Parliament come to a Review and often to an Alteration yea Repeal in the next The Intervals of those great Councils are sometimes
doth scruple the Reasonableness or Equity of a Law concerning Civil Rights or what 's required from it he may notwithstanding yield Obedience without Sin and ought so to do rather than to offend by an appearance of Disobedience as Christ himself did Matth. 17.26 27. But in Matters of Religion even as Circumstances Ceremonies or the least thing wherein the Lord hath concerned his Word if there be a Doubt or Scruple whether lawful and conformable to the Scriptures tho it be from Ignorance or Weakness yet I sin if I submit Rom. 14.1 compared with 23. The Consequence of Transgression in this kind is more than loss of Estates Liberties yea or of Life it self If the Laws of Superiors concerning Civil Rights be unjust in themselves or prove unequal from the Circumstances of this or that Man's Case who cannot be relieved by any Indulgence he may submit without Sin without transgressing any Law of God nay it is Vertue and pleasing to the Lord our patience in such suffering 1 Pet. 2.13 with verses 18 19. 1 Cor. 6.7 but not so in the Matters of Religion for we have from Christ to the contrary that is not to subject Col. 2.20 And God blames his People by his Prophets for wittingly walking after the Commandments Hos 5.12 and for keeping the Statutes of Omri Micah 6.16 the Lord is a jealous God. SECT 4. If there be not a Power to Judg and Dispense intrusted in some Hands the People of God are in a worse condition on these Accounts than in their Civil Interest and that upon a three-fold account 1. The Secular Laws and Statutes made in the behalf of the Subjects are often upon further Deliberation and Experience of Inconveniencies altered and repealed whereby the Subjects have ease But Acts of Parliament wherein Ecclesiastical Affairs and Mens Consciences are concern'd are seldom or never revised or altered much less repealed no not for the space of an hundred Years can we give an Instance hereof So far are we from repealing Acts made in Ecclesiastical Affairs as is ordinarily in our Civil Matters that some Acts passed partly for their Severity or upon some other Account doubtful whether fit to remain as standing Laws therefore are limited to a certain Time after which to expire and cease the severe Act of 35 Eliz. that 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 made whether in Force or not is declared by the present Parliament to be in Force and 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 Laws made in every three or four Years in Parliament providing Remedies as fast as time breedeth Mischiefs and contrariwise the Ecclesiastical State should still continue upon the Dregs of Time and receive no Alteration now for these many Years We have heard of no offer 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 of the Letter of their Canons and Orders there is no Chancery or Court of Equity among them to appeal unto for Redress but in some few Cases as in Causes Testimentary of Matrimony Divorses Tythes c. specified 24 H. 8.12 Matters wherein our Estates are touched But in Matters of Conformity and such Cases wherein our Consciences are most concerned we are left destitute 3. Again 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 Judge this Sir Fra. Bacon in his Considerations condemned 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 not be exposed more than others to such extremity of Rigour for otherwise as Consciencious Men are more disposed to Scruples and Doubts 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 Ballance is placed which is that we shall insist upon in the next place SECT 1. THIS Prerogative or Power to Dispense and Exempt from Ecclesiastical Laws is in the Soveraign for the Confirmation whereof not to insist on what was acknowledged by Pope Eleutherius touching Lucius our first Christian King that he was Vicarius Dei in Regno suo in reference to Matters to be reformed or is mentioned touching the Laws and Practice of King Edgar and Edward the Confessor named the First Meae solicitudinis est quieti eorum consulare de quorum moribus spectat ad nos examen And of the other from whom it is said much of our Law is derived that describing the King's Office he saith Rex ad hoc est constitutus ut Regnum terrenum Populum Dei Ecclesiam regat ab injuriis defendat maleficos ab eâ evallat destruat penitus desperdat and much of like nature that might be urg'd from Antiquity But to come nearer Home The Testimonies of the Clergy in Convocation the Representative Church of England who make it so great a Duty to acknowledg it as they have expressed their Severity thus Whosoevor shall affirm the King's Majesty hath not the same Authority in Cause Ecclesiastical as the pious Princes of the Jews and the Christian Emperors obtained c. let him be Excommunicated ipso facto and not to be absolved but by the Arch-bishop of Canterbury Canons of the Convocation 1603. 2. I shall join with this Testimony that of another Synod or Council namely that met in the Star Chamber a. Jac. made up of all the Judges and Persons learned in the Law summoned by King James for Resolution in some Ecclesiastical Causes whereof this of his Majesty's Prerogative was one their Resolution you have in these words The King may without the Parliament make Orders and Constitutions for the Government of the Clergy and punish those that disobey or refuse to submit And this with other Resolutions in Ecclesiastical Matters were ordered 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 and there hath been no matter or thing so Sacred and of such Concernment in these Affairs ordered by Parliament but the like and of as great
it self in such a Case the greater is the wilfulness in transgressing and so may justly demerit a greater Punishment But yet a Matter being small in it self and as it stands the Subject of a Political or Civil Law the same when it becomes the Matter of an Ecclesiastical Law ought not to be formed with respect to State-Ends or in ordine ad Temporalia though it be a small Matter in it self and as a thing meerly Natural or Moral may notwithstanding be very great upon that account and greater to the Person who scruples the Lawfulness thereof than the greatest Penalty that can be incurred by refusal for there is no Circumstance or Ceremony that hath a constant Station and Place in the Worship of God for any Spiritual End designed as ours are but in their relation and respect thereunto are great what-ever they are in themselves These Laws therefore being Ecclesiastical wherein God and Mens Consciences are so immediatly interested the not conforming to them cannot be supposed a true measure to judg of Mens Wilfulness or Obstinacy it would be a great reflection upon the Prudence or the Charity at least of our Laws and Injunctions so to interpret them If the greatness of the Penalty be said not upon the Crime materially considered but in respect of that evil Frame wherein we transgress God only is the searcher of Hearts and although by Overtures and Circumstances something may be discovered this way yet it is with great difficulty and uncertainty especially when we transgress by Omission the reason is in positive Acts done by a Man all the Faculties of the Soul are engaged and exert themselves together at the same time and in the Circumstances of such acting there remains those Overtures of such a frame of Mind as a more permanent and exact Counterpart thereof Omissions are many times when the Mind stands but half-bent the Understanding not clear the Will not determined in an Omission there is nothing of the Man left upon Record distinctly to be read and considered of by us so that we can scarcely so much as guess from what Principles within an Omission doth proceed And the uncertainty is far the greater when it is notoriously known such Omissions may be from a good Intention as well as a bad To be able so far to dive into Mens Hearts as distinctly to discover Intentions is a Work more suitable to the Word of God Heb. 4.12 than the Laws of Men we would not therefore interpret these Laws in such a sence as to render all Omissions to be upon Principles of Wilfulness and Obstinacy it would be more charitable where so little Evidence can be produced rather to judg the contrary of our Brethren and Fellow-Subjects 6. This Act of Uniformity not we hope in the Intention of it but in such an Interpretation hath been the Original of all our Sufferings If therefore that be not the true meaning of the Act intimated in his Majesty's gracious Declaration namely That upon what Principles soever Men submit not unto it though from tenderness of Conscience in the greatest Evidence yet thereupon to be punished with the loss of all their Spiritual Promotion but if it appear from Obstinacy and Sedition that such only should suffer so deeply by the addition of further Pains and Penalties as are in that Act inserted what is more just and equal If this yet be not the meaning of the Act as it seems by constant Proceedings against the Transgressors of it for what Man was ever relieved in any Court Ecclesiastical or Civil upon such a Plea he omitted not such Observations wilfully but of Conscience I say therefore If that be not the sense of the Act yet upon these Considerations but now mentioned there is Evidence sufficient that this gracious Dispensation of his Majesty of such redundant Penalties and of such a Nature are all the Penalties we are exempted from in that Declaration is to be judged of as most Necessary Prudent Just and Charitable His Majesty being therefore perswaded that many Multitudes it 's his Majusty's Expression Declart of Dec. 26. 1662. suffered being insnared in their Consciences and not from Wilfulness and his Charitable Opinion seems to be grounded upon an Observation of his own It is evident saith his Majesty by the said Experience of twelve Years there is very little Fruit of all those forcible Courses The Will is a more unsteady Principle and easily wrought to a Change upon Representation of Good or Evil. But Conscience is more fixed and incorrigible it not being in our own Power to alter the Dictates thereof as to be changed from our Natural State was not in our Power no more is the change of our Perswasions in Matters of Duty Conscience being engaged Phil. 3.15 but God alone doth it His Majesty therefore wisely judged it would be less Injustice and better for the Common-Wealth that all such Penalties be removed and suspended when the execution of them have been so constantly misapplied and so much to the prejudice and disquiet of his Good Subjects It is Righteousness and not Ceremonies that Establish a Nation SECT 3. QUEST IV. If the Penalties of all Ecclesiastical Laws be removed these Laws themselves become impracticable and when Men are left to worship in what Forms they please will not that Ancient Establishment of one Uniform Worship and Government to be the same throughout this Kingdom be utterly destroyed Answ 1. For that which we term Uniformity in the Worship and Service of God we find no other in the Apostolical Churches but what arose from inward Principles freely and naturally these Principles being the same as where there is the same Seed there will be the same Blade Stalk Leaf Flower And there is an Uniformity from External Impressions as in a Mould these are constrained and forced The former is from the Lord a Work of his Power and there is beauty in it Psal 110. The latter is from Princes and States wrought by the Power of their Laws and Penalties and may have much hypocrisy but little amiableness The basest Metal as well as pure Gold will conform to the Mould into which it is cast Such a conformity is no safe Character to distinguish who is fit and who not for Ministry or Membership but the other is of great use in the Churches of Christ As the Wicked who are a Seed of Evil-doers are uniform in their Practice being acted from the same inward Principles Eph. 4.17 So the People of God being baptized into one Spirit 1 Cor. 12. They live in this Spirit and walk in this Spirit Gal. 5.25 And as in other Duties of Piety and Justice So in Church-Administrations where Men are of the same Mind and the same Principle they will all speak the same things though not the same Words in Preaching in Praying and Officiating in the Service and Worship of God though there be no external Prescripts or force of Humane Laws to bring Men to an exact