Ecclesiastical Laws and Supremacy of the Kings of England, Chapter 1
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 QƲESTION.
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, 'tis 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, 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 althô theſe Lawes have been paſſed by His Majeſty's royal aſſent formerly, and (what is more) a Clauſe inſerted in the Act that the King's Licence in this or that caſe ſhall be void. Yet it will be no BARR to ſuch Prerogatives as are originally and inſeparably inherent in his royal Perſon, but he may give Licence with a NON OBSTANTE thereunto.
A learned Sergeant in his NO MOTECHNIA hath theſe words, The King by a Clauſe of NON OBSTANTE may diſpence with a Statute Law, if he recite the Statute, though the Statute ſay ſuch Diſpenſation ſhall be merely void. And he may licence things forbidden as to Coin money, which is made by the Statute Capital, and was before unlawful, for that is but malum Prohibitum; but malum in ſe, as to leave a Nuiſance in the High way, &c. he cannot licenſe to do, but when it is done he may pardon it; but where the Statute ſaith his Licence ſhall be void (which the Civilians call clauſula derogative) there it muſt have a Clauſe of NON OBSTANTE (i.e.) NOTWITHSTANDING ANY STATƲTE, and elſe it is not good. And (ſaith the ſame Author) he may in reſpect of his Supreme 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 Judge Hobart, That thô the Statute ſaith, that all Diſpenſations, &c. ſhall be granted in manner and form following, that yet the King is not thereby reſtrained, but his Power remaineth full and perfect as before, and he may ſtill grant them as King.
The King may remitt the Penalty and Puniſhment thô not diſpenſe where what is forbidden by Law is malum in ſe, ſaith that Sergeant in his forementioned Diſcourſe: much more then where what is forbidden is but malum Prohibitum. The Statute indeed of 1 Ed. 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 late 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.