A Glance on the Ecclesiastical Commission:

BEING A DISCOURSE Concerning the Power of Making and Altering Ecclesiastical Laws, AND The Settling Religion; Whether it belongs to Our KINGS Alone, AND A CONVOCATION: OR, Whether it must not be Asserted rather, ☞ No Medling with Law-Making, or Law-Mending, (whether Ecclesiastical or Temporal,) but by Authority of Parliament?

In hoc Reges, sicut eis Divinitùs praecipitur, Deo serviunt in quan­tum Reges sunt, si in suo Regno bona jubeant, mala prohibeant, non solum quae pertinent ad humanum Societatem, verum etiam quae pertinent ad Divinam Religionem.

Aug. Cont. Cres. l. 3. c. 54.

London, Printed for W. Alchorne, 1690.

THE RIGHT OF Making and Altering Ecclesiastical Laws, OR Of Settling Religion, Where it lies, DISCOURSED.

WHEN the Christian Faith was first Embraced by the Saxons, nothing had the force of a Canon or Ecclesiastical Law, but what was Established in Par­liament. Spelman's Counsels, and our Old Historians, such as Malmsbury, Hoveden, Westminster, Ingulphus, sup­ply us with innumerable Instances of this kind, not mentioning any Canons, but what had a Parliamentary Sanction.

The granting Charters of Execution to Abbies, seem­ed more peculiarly to belong to our Kings as Supream Ordinary; yet the principal Grants of this Nature, even that to Battle Abby, by William the Conquerour, was, Consilio Episcoporum & Baronum meorum.

After King William, the Popes came in time to U­surp such Authority over the Clergy of this Land, as to do even what they pleased, until Henry the VIII. put an end to that Usurpation, by assuming the Supre­macy.

In this King's Reign (An. 25. c. 19) an Act of Par­liament passes, which grants to the King a Power to assign Thirty Two Commissioners, (Sixteen of the Lai­ety, and Sixteen of the Clergy) to Examine the Canons for the Abolishing the Ill, and letting the Good stand: And it is Enacted in this Statute, that no Canons shall be Made or Executed without the King's Consent. Up­on this Clause it was, that the Judges in King James's Reign grounded their Sentence, when they gave him such a Power as I shall mention when I come to it. But other Lawyers do deny, That any such bare Nega­tive Words can be a Ground sufficient for raising a Posi­tive Rule, as they then did in this Case. It is rather thought better Arguing from this Commission, that no Canons can oblige the Laiety, unless their Representa­tives be at the Making or Establishing of them.

In Edward VI. Time, a like Power is granted to him by an Act, as this was to his Father. Where, Note, That neither Henry nor Edward had any such Power Inherent to the Crown; for else neither of them had need of any Act of Parliament to give it to them.

In Queen Elizabeth's First Year, a Bill of the same Import was brought into the House, and read Twice, [Page 5]and ordered to be Engrossed, but nothing came of it; which nevertheless (though it passed not) affords us the same Argumentation.

In this Year was there an Act of a more grievous na­ture that passed, An Act annexing to the Crown the Ec­clesiastical Jurisdiction, which enabled Her, her Heirs and Successors, with Authority to assign Commissioners for the Exercise of the same. Here arises the High-Com­mission Courts, which were so great a burden to the Subject, during Her, King James, and King Charles the First's Reign, until the 17th Year of the said Charles, and then was this Power repealed.

I must take leave here to distinguish between the Power of Legislation, whether in Ecclesiastical or Civil Matters, and this Power of Jurisdiction. When the Par­liament gave the Queen such a Power, it is not to be understood they intended that She, or King James should act so Despotically in Maaters of the Church as they did; but that they should have a Power of Judgment (or Jurisdiction) only, and not a Power of making any Law Ecclesiastical or Temporal, or altering any thing by Law Established about Religion, or otherwise: For such a Power was, and is to be asserted always to belong only to Parliaments. And this may be confir­med by another Act, the Act of Ʋniformity, made the same Year, (An. 1. c. 2.) wherein She is empowered, with the Advice of her Ecclesiastical Commissioners and Metropolitan, to Make or Alter any of the Rites and Ceremonies, if she saw just occasion. This Power now is different from the former, or else it would not be given her in another Act; and it did not belong to her Crown, or else it would not be given her at all: And it was no more, but as to Rites and Ceremonies. No­thing [Page 6]else required in that Act of Uniformity, or in the Matter of Religion, could be altered by Her, unless by Parliament.

Nevertheless, in the Reign of this Queen, and in King James's, the Two Houses were in a manner quite neglected in matters Ecclesiastical. The Queen sent forth her Injunctions; and her Clergy, under her Name (but not under her Seal, as is suspected by the Learned) gave out their Advertisements and Articles; and the Queen her self did even Industriously endeavour to lay aside all Parliaments as useless, when things of this na­ture were to be considered. The Queen (I say) was very peremptory, in assuming to her self an uncontroul­able Power in Matters Ecclesiastical; but the Commons did the utmost they could to maintain their Right, and toward the close of her Highnesses Reign, obtained it.

In the 8th of Eliz. Five or Six Bills touching Religi­on, and Church Government, were read in the Lower House; but because the House was suddenly broke up, nothing was done. In the 13. Eliz. Seven Bills for Re­formation of Religion were read, each Bill three times; but it was declared in the House, That Her Majesty would not suffer these things to be ordered by Parliaments: Not­withstanding which Message (as Sir Simon Dewes, in his Journal still has it) the House of Commons proceeded, and sent up the Bills for Orders of Ministers, Residence of Pastors, and Commutation of Penance, to the Lords: But the Bill of Subscription only to the Articles of Faith, and Doctrine of the Sacraments, and not to the Cere­monies or Government, passed this Session. In the 14. Eliz. the Commons are on the other Bills again; but the Queen, by Mr. Speaker, declares her Pleasure, That from henceforth no Bills concerning Religion be prefer­ed, [Page 7]or received into the House, unless the same should be first considered, and liked by the Clergy.

In the 35. Eliz. Mr. Morrice, Attorney of the Court of Wards, spoke smartly against the Subscription en­joyned by Regal Authority, and against trying the Cler­gy who refused the same, by way of Inquisition: With him concurred Sir Francis Knowles, and Mr. Oliver St. John; but Sir Robert Cecil stood up, and told the House, That though he knew not what was in the Bill which Mr. Morrice had brought in, yet he remembred very well, that it being about Religion, Her Majesty had streightly for­bidden Them to meddle in such Cases: And Her Highness soon after Commanded Mr. Speaker to declare Her Pleasure, That no Bill, touching Reformation, be exhi­bited; and if any were, She charged him, on his Alle­giance, not to read them. But in the 39. Eliz. the Queen consented, that the Parliament should proceed in the Reformation of the Church.

However King James coming to the Crown, he ve­ry soon orders a Conference at Hampton-Court, and makes Alterations in the Common-Prayer, without help of Parliament; and carrying it on his own Authority, calls a Convocation, and confirms at once, 140 Canons and Constitutions Ecclesiastical. In his Second Year he causes his Judges to meet, and give their Opinion; and they (notwithstanding the Onerousness hereof to the Subject) do declare, That the King, without a Parliament, might do thus, that is, Make and Impose Canons; and Deprive, in case of Non-Obedience. Ob­serve likewise, that this was an extrajudicial Opinion, there being no Cause depending before them: Such slippery Tongues and Judgments have Lawyers, when they are under the Temptation of Flattering Princes. This you have in Crook's Reports.

After this Sentence, no wonder, that you find the Ecclesiasticks growing up to an Exorbitancy of Power, during the Reign of this King. And in the Reign of Charles the First, Laud makes the same steps. New Constitutions are advanced, high ensnaring things de­vised; The Et-cetera Oath, Sports on the Lord's Days, imposed. The Nation can't endure it, Stirs are raised, a Parliament forced to be called, and they prosecute a Redress of these Grievances so vehemently, that King and Arch-Bishop, and the whole Hierarchy with Him, is brought to an end.

In Charles the Second's Reign following, there is this one thing Remarkable, That out of favour to the Pa­pists, he puts forth a Declaration for Liberty of Con­science to the Dissenters; he goes not to promote it in the Houses; if we have Liberty, it must hang upon his own Will, or not at all. This the Parliament re­sents, and as Illegal opposes it, and constrains him to Revoke his Declaration. Here was there a plain Con­quest, and indeed Triumph over the Dispencing Power of our Kings: And yet James the Second, taking the Throne, resumes the same, and persists in it with that Obstinacy, as we all know, hath occasioned our present Revolution.

The thing that gave the Crown and Clergy their Advantage, was an Error generally received by the com­mon Lawyers, even by Sir Edward Cook himself, that what Power in the days of Usurpation was, de facto, ex­ercised in England by the Popes, doth, de jure, belong to our Kings: Whereas indeed, it was not that Unaccount­able Power the Pope assumed, but the Ancient Power only exercised by the Kings of England, that was resto­red and united to the Imperial Crown: Or, as I have [Page 9] de industria before distinguished, it was not any Legisla­tive Power without a Parliament, but the Power of Ju­risdiction only was annexed thereunto.

There are these Reasons for this do appear:

  • 1. From those Acts, and all those Acts of Parliament in Edward the 6th, and Elizabeth's Reign, or any other since Henry the 8th, which have given to our Kings or Queens any such Power as I have before mentioned: For such Acts must have been needless, if they had that Power, and more than that, by their Supremacy only.
  • 2. From those Instances that may be given, and more particular­ly in the matter of Marriages, wherein the Popes took power to Dispence, and our Kings, don't and can't, with­out the Parliament, as in the late known Lord Ross's Case▪
  • 3. Ab incommodo. If these Lawyers were in the right, then must not only all the Arbitrary Proceedings of all our former Princes, which have been still so much bla­med and redressed by Parliaments, but even the doings of our late King James the Second, (they being all and every one of them alike grounded upon this bottom) be justified against the whole Nation, and We con­demned.
  • 4. Ab Authoritate, From Authority greater than these Lawyers, and that is the Opinion of the House of Commons; who in that Year (or a little be­fore) when the Judges gave King James such a Power in Ecclesiasticals, as I have before recited, did cause a Message to be delivered to him from them by their Speaker, which I will set down in the words of the Journal: Mr. Speaker in his Speech to the King, declared, That his Majesty was misinformed if any Man should deli­ver, That the King of England hath any Absolute Power in himself, either to alter Religion, or to make any Law [Page 10]concerning the same, otherwise than in Temporal Cases, by consent of Parliament: 1. Jac. 1. Fol. 567.569.

The truth is, That during the Reigns of Elizabeth, James the First, Charles the First, when Nonconformists were outed of their Ministry and Livings by the Canons, and not by legal Trials, and the same Despotical Power was exercised by those Princes and the Bishops against the Puritans, as was exercised by James the Second, the Eyes of our Churchmen were generally shut: But when those Proceedings were turned against the Church, upon the very same Foundation, by the late King, I may righ­teously expect, that the Eyes of such Men now, as well as others, especially of some of the Learned (though they had the beam of Non-resistance in them before) should be opened to see and acknowledg these Truths, or Assertions of this Paper, viz. That it was not a Power of making Ecclesiastical Laws, but a Power only that be­longed to our Kings before the Pope's Usurpation; that was restored to Henry. That our Ancient Kings had no Legislative Power out of Parliament. That all Canons derive their Force from the King, in his Legislative Ca­pacity, that is, as Incorporated with his two Houses. That they could not of themselves, before the first of Elizabeth, grant any Commissions for the exercise of Ecclesiastical Jurisdiction, which yet is less than Legisla­tion. That the branch of that Law of Elizabeth gran­ting so much, being Repealed by Charles the First, there can never be any other such Courts legally Erected. That Benefices are a Free-hold, and that no Minister ought to be deprived of them but by his Peers, or Trial of a Jury. I will add, That the Subjection, which is re­quired in the Sacred Scripture, to the Higher Powers up­on [Page 11]pain of Damnation, is a subjection to the Powers that Are, not to the Powers that are Not. Now the Pow­ers that Are, are the Powers according to the Constituti­on. In this Case then, let us hearken to Bishop Bilson, and let Bishop Sanderson be attended in other Cases, wherein he was more skilful than in Politicks. If a Prince should go about to Subject his Kingdom to a Fo­reign Realm, or change the Form of a Commonwealth from Impery to Tyranny, (that is from Regal to Despotical) or neglect the Laws Established, to execute his Pleasure: In these and other Cases, that might be named, if the No­bles and Commons agree together to defend the ancient accustomed Liberty, Regiment and Laws, they are not to be accounted Rebels. In page 520. of his Book, about Subjection and Rebellion.

Upon the whole that is here related, there may arise two Questions; which are to be held distinct, though apt to be confounded.

The first Question is, If these things be so, what then shall we think indeed of the Power of the Bishops? Un­to this, that which some Lawyers say, is, Edward the Sixth makes a Law, That the Bishops shall hold no Courts, but in the King's Name. Mary Repeals this Law, (or this part of it). King James Repeals that of Mary. It follows; (say they) that Edward's Statute must be Revived, and is of Force; If not, the Common Law starts up, and that is declared therein, to say the same. Nevertheless, that other Lawyers have something coun­ter to this, and some considerable thing too, I am not so malignant to the Bishops, as not to believe: Let them that can, and can make it good, tell what.

The Second Question is, And what shall we think of [Page 12]the King's Power, as to this present Ecclesiastical Com­mission? As for which, I must confess my self so through­ly satisfied with the Good intended, that I will say no more than this only. Whereas, It was an Act of Parliament, wherely Henry and Edward had, and Elizabeth should have had, the Power to appoint Commissions of this kind, that is Ecclesiastical ones; though with this diffe­rence, that those Commissions were to Determine things, this Commission only to Prepare things for the deter­mination of a Convocation, and the Parliament; which Power yet of Preparation, was to have been granted by an Act, if the Bill for Comprehension had first passed, as was intended by both Houses; and so the same had been done Now, as in former Reigns, and then all had been well out of doubt. I do humbly move, both for the vindication of the Right of Parliaments, and Preserva­tion also of the Honour and Pains of the Commissio­nated Bishops and Doctors, and the taking what they have so kindly done in good part; That the Bill only for Comp [...]ehension be the more suddenly revived, and that will make up the whole Matter.

When th [...] Act should have gone before the Commission, because the Com­mission should have bin Authorized by the Act; to put the Commission before the Act, hath bin to put the Cart (as we say) before the Horse: And conse­quently, if the Bill be revived, and passes, and the Commissioners Autho­rized thereby to present what they have Prepared to the Convocation, and the Convocation what they shall Determine thereupon to the Parliamens, then will the Horse be re-duired before the Cart, and we shall drive o [...] fair [...]y, they being both set right. The Truth is, the main thing which I [...] Comprehension, is the business to be attended; and let but that (which is already in the Bill) be Established, the several things, by way of Improvement thereof, with re­spect to the Book of Common Prayer, the Book of Orders, the Book of Canons, the Government and Discipline of the Church (which last, do require a more profound Reformation) may stay a due time to receive Perfection. They must have time to be Debated, to be Compounded, and God knows when so great a Work can be done. There is no need, no reason that we wait for the Act of Comprehension till then, unless we tarry (and it be some Ill Mens Plot) to have non: at all.

FINIS.

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