Selected quad for the lemma: religion_n
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A52597
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The king's authority in dispensing with ecclesiastical laws, asserted and vindicated by the late Reverend Philip Nye ...; Lawfulnes of the oath of supremacy and power of the King in ecclesiastical affairs
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Nye, Philip, 1596?-1672.
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1687
(1687)
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Wing N1495; ESTC R17198
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36,268
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70
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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
of God to be only Jure Humano and may be otherwise and was so in the Primitive Church in her greatest purity Pastors and People were not then as now engaged in this Relation and one to another by a Parochial Bond or Tye but injoyed a Christian Liberty voluntarily to dispose of themselves under such or such a Ministry as they should make choise of to themselves The Church is said in this State to be in greatest purity The Congregational-way therefore is not a way in this learned Judg's Opinion of Disorder and Confusion as is frequently suggested 2. And that it is in the Power of Supream Majesty to dispense with a Parishioner as well as with a Pastor or Rector in such a Case that is to remove from his Parish to another for more suitable Enjoyments as for a Rector upon his Majesty's Dispensation to be a Non-resident and take another Rectory the division of Parishes being Jure Humano What those Things and Matters of Religion are in the Judgment of our State that comes under the Manage of humane Wisdom and Power are well expressed in Queen Elizabeth's Advertisement These Orders and Rules ensuing have been meet and convenient to be used and followed yet not prescribing these Rules as Laws equivalent with the Eternal Word of God and as of necessity to bind the Consciences of our Subjects in the nature of them considered in themselves Or as they should add any Efficacy or more Holiness to the Vertue of Publick Prayer and to the Sacraments but as temporal Orders meerly Ecclesiastical without any vain Superstition and as Rules in some part of Discipline concerning Decencies Distinction and Order for the time And in the Articles of 1562 It is not necessary that Traditions and Ceremonies be in all Places one or utterly alike for at all times they have been divers and may be changed according to the diversity of Countries and Mens Manners so that nothing be ordained against God's Word It is granted that even these Ecclesiastical Laws ought to be conformable to the Word of God and to those General Rules laid down in the Scriptures for ordering the Worship and Service of God in the Churches as Let all things be done decently and to Edification Give no offence to Jew or Gentile and the like and not to be the meer inventions of Men. That distinction some would make of things against or contrary and what is according to the Word of God the one they apply to Matters of Faith the other to Matters of Order It is a Distinction without a Difference there is more Wit than Truth in that Interpretation of Christ's Words He that is not with me is against me and in another place he that is not against me is with me applying the one to Matters of Faith the other to Matters of Order There is no such distinction to be made but Rites Ceremonies and Matters of Order ought to be according to God's Word as well as Matters of Faith. Magistrates are to judg Circa Res Ecclesias de iis si Fidei sint dogmata Vel ritus et Ceremoniae earumque Veritatem et Equitatem juxta Verbi Divini normam Mocket de pol. Eccl. Angl. cap. 3. And the Power of the King stands not in forming new Articles of Faith or Forms of Religion such as were Jeroboam's Calves but in defending and propagating that Faith and Religion of which God in the Scriptures is the undoubted Author saith Mason of Bishops lib. 3. cap. 5. It is evident those Holy Men our first Reformers made no such distinction but that all should be done according to God's Word laying before them these general Rules in Scripture even in retaining what hath been so offensive For of the retaining Ceremonies there is this account by them given Because they appertain to Edification whereunto all things done in the Church as the Apostle teacheth ought to be referred And of our Liturgy thus There is nothing to be read but the very pure Word of God and the Holy Scriptures or that which is evidently grounded upon the same Preface to the Common-Prayer Book God be thanked saith good King Edward the 6th we know both what by his Word is meet to be reformed and have amended c. It is convenient thus distinctly to have insisted upon what we term Religion or Matters Ecclesiastical according to that sense in which the Civil Magistrate assumes to himself the ordering thereof And what influence the Scriptures and Authority of God hath or ought to have in these Rites of the Church and Matters of Order as well as in Matters of Faith for hereby it appears whence it is Mens Consciences are more concerned in these Laws than in other Municipal Laws of the Nation And that the not being free to submit to these Ecclesiastical Laws when not formed according to God's Word is no Evidence of that Seditious Spirit that kicks against all Laws SECT 2. There is a necessity and that of much greater importance Provisions be made of Dispensations c. as occasion shall be in respect to Laws Ecclesiastical than in Civil In Matters of Religion and the Worship of God 1. Multitudes there are of loose and profane Persons in respect to such neither are the Laws in themselves nor in the execution of them severe enough 2. Against Popish Recusants the Laws have been severe enough yet in the execution great moderation 3. There are those and blessed be God great Multitudes who are not only Orthodox in Faith but of unblamable Life in the greater Things of Law and Gospel These are fallen under most severe Laws and of late with greatest severity put in execution and utterly ruin'd if there be no means of relaxation It is in behalf of these I argue this Necessity and that from these and the like Considerations 1. There is a greater proneness in Conscientious Men to scruple and to be doubtful in their Obedience to the Ecclesiastical than to the Civil Laws of a Nation as before 2. Great Difficulty in forming Laws wherein Mens Consciences are immediately concern'd so as not to dissatisfy some if not many 3. If those Laws be not according to Scripture in the apprehensions of those that are to obey whatsoever they are in themselves it is our Sin if we obey it is not so in Civil Commands 4. It is not of so ill Consequence for us to yield Obedience to a Civil as to an Ecclesiastical Law if ill constituted by the State. 5. From what is found in a manner peculiar in these our Ecclesiastical Laws and the Administration of them many ways prejudicial to the Subject there is a necessity some such provision of this kind be found on our behalf 1. The real Scruples and Doubts about our Obedience in these Ecclesiastical Matters cannot but be more and greater than in other Laws The knowingest Man in these Things knoweth but in part and the most Men have but a parcel in this part It is true the