The Covenanters Plea Against Absolvers, Discourse · Chapter 6
CHAP. VI.
The Abſolvers pretended Errours in the Covenant examined, in part. The Covenant as to the matter of it (ſo far as reſpecteth Prelacy) not contrary to the Word of God. The Plea of its contrariety, to the Lawes of the Church or State, examined, and proved inſufficient for the irritation of it.
§. 1. VVE ſaid before, that whoſo fancieth, an eſcape for his ſoul from the obligation of the Covenant, once taken, muſt be put to the trouble, to aſſign ſome errour ſufficient to diſcharge him, the ſufficiency of which, muſt be alſo judged by the Word of God, becauſe from that an Oath derives its Obligatory vertue. That there may be ſuch errours in Oaths that we have taken is granted, whether in this Oath, there be or no, is the queſtion. If there be any, we muſt find it either in the formal or material, or efficient or final cauſe: For we ſhall hardly find any in any appendant circumſtance, which will be of ſuch force.
§. 2. And verily there is a variety found out (relating to the three latter Cauſes) by ſuch as have ſpent their time to ſeek them. They have ſought falſe witneſſes againſt the Covenant, to put it to death, but we hope before we have done, to prove not only that they have found none. (for their teſtimonies have neither agreed to the Propoſitions of the Covenant, nor yet to the matters of fact, relating to Divine Providence, nor yet each with other) but alſo to diſcharge them from their uſeleſs employment in ſeeking knots in ſo even a ruſh, by proving that none can be found, ſo that they muſt be forced to cut this Gordian knot, becauſe it cannot be untied.
§. 3. As to the material cauſe. The matter of every Oath of Covenant being either neceſſary, unlawful or indifferent: And each of theſe again being poſſible or certain, or impoſſible, or uncertain. If the matter of the Oath (to which we are ſpeaking) be neceſsary, as commanded us by the Word of God; or indifferent, where Gods Word hath left us at a liberty, except it be impoſſible, we are certainly bound to the performance of it, by our Oath, in the judgment of all Divines that we ever yet met with. From whence every conſcientious Chriſtian (by the way) muſt needs conclude thus.
1. If the Officers as to the external adminiſtration of the Church of Chriſt under the Goſpel, be ſo determined by the Word of God, That no Church under Heaven, nor any other powers, can make any alteration in them, but only ratifie and confirm what God hath there appointed. Then, unleſs we can find that Archbiſhops, Biſhops, Deans, Deans and Chapters, Prebends, Chancellors, Commiſſaries, Archdeacons, are the Officers appointed by Gods Word, for the Government of his Church, we are moſt certainly obliged by our Oath, to endeavour their extirpation: The reaſon is, becauſe although we had not ſworn, yet we are bound as Chriſtians, to endeavour in our place and calling, that the Church to which we belong, have in it no Plants which are not of our Heavenly Fathers planting, and according to our former rule, what we are bound to do without an Oath, we are much more (having ſworn) obliged to.
2. Suppoſe the Government of the Church be not ſo determined by the Word of God, as to the external Adminiſtrators of it, but it be in the power of the Magiſtrate, or the Church to add ſome Officers, not there mentioned, or to chuſe what Form they pleaſe; yet we having ſworn againſt this Form of Government, and againſt theſe Officers, we cannot ſet them up nor own them, but muſt, if they be impoſed upon us, ſuffer under them: The reaſon is, becauſe the matter of the Oath was indifferent & libera, and Juramentum tollit libertatem, we having ſworn, it is to us no longer free.
§ 4. No one can challenge the Covenant as giving an uncertain ſound, at leaſt, not as to this Branch of it; What we ſware to, was not the general will of another, nor the unknown Rights, Statutes, and Priviledges of a Society (yet many Oaths of that kind are judged lawful by Caſuiſts, and generally judged obligatory though not without ſome exceptions) but the thing in this Oath is expreſſed, Prelacy, and the particular ſpecies of Prelacy, ſet down as plainly as can be imagined; ſo that there can be no eſcape, for any ſoul that feareth an Oath.
§. 5. It remaineth therefore, that thoſe who plead the non-obligation of this Oath, and have ſet up this new trade of abſolving ſouls from it, muſt aſſert the matter of it unlawful, either primarily, or ſecondarily, either in its own nature, or in reſpect of ſome accident.
§. 6. Dr. Sanderſon tels us, that an Oath (as to the matter of it) is unlawful in its own nature, primarily, when it is contrary to the Word of God. (Secondarily) When it is contrary to the juſt Lawes of any community in which we are involved: That an Oath may as to the matter of it be unlawful (ex accidenti) when it hinders ſome good, or occaſioneth ſome evil to our ſelves, or to others, when a mans own Conſcience judgeth it unlawful. Others add, when it is contradictory to it ſelf, or to ſome former Oaths, &c.
§. 7. But the Caſuiſts generally agree, that every unlawful Oath is not preſently void (if once taken) it will be neceſſary therefore not only to examine, whether the Covenant (as to the matter of it). were unlawful, but whether it were ſo unlawful, that it doth not (now being taken) oblige, which unqueſtionably it was, if (as ſome pretend) it were contrary to the Word of God, in this particular; for no ſoul can be by an Oath bound to ſin againſt God, according to that known Rule, Juramentum non potest eſſe vinculum iniquitatis.
§. 8. But thoſe who plead the Obligation of the Covenant (upon this account) null, will eaſily underſtand, that they will ſtand concerned to prove from the Word of God, That God hath ſomewhere determined, that either his Church Catholick, or his particular Church in England, ſhould inalterably be governed by Archbiſhops, Biſhops, Deans, Deans and Chapters, Prebends, Chancellors, Commiſſaries, Arch-Deacons, &c. Which when they have done, we will freely grant them that the Covenant in that Point doth not oblige: But this is ſuch a task, as none we have met with durſt undertake.
§. 9. That therefore which they chiefly inſiſt upon, is, that the matter of the Covenant was ſecondarily unlawful, as contrary to the Lawes of the Church or State-communities in which we are involved, where we have two things to do, 1. To examine, Whether what they ſay be truth. And 2. To examine whether it be concluſive.
§. 10. The Church is either Catholick and Univerſal, or particular: Either Entitive, Miniſterial or Organical. When we ſpeak of a Church ſuppoſed to be in a capacity to make Lawes, obliging others, we muſt underſtand an organnical, repreſentative Church, either Catholick, or National, or Provincial.
§. 11. The Catholick Church in this ſenſe, muſt conſiſt, of a due proportion of Members ſent from all particular Churches in the world, who meeting in a Synod, ſhall determine, or have determined ſuch and ſuch things; and we do confeſs (though we dare not aſſert ſuch Lawes univerſally obliging to all Chriſtian People to the worlds end) that we have and ſhould have a great reverence, for ſuch conſtitutions. But we do not believe that ever any ſuch an Aſſembly met upon the earth, nor do we believe the world in a capacity to convene ſuch an one, we have indeed read of ſome Councils called General Councils, but beſides that, we find no ſuch Law made by them, neither do we believe them to have been ſuch Aſſemblies, ſtrictly conſidered.
§. 12. They muſt therefore underſtand the National Church of England: Which may be taken (as we ſaid before) entitively, or organically. In the firſt ſence, The Church of England is the whole number of Chriſtian people in England, profeſſing the Chriſtian Faith: But when we ſpeak of a Church making Lawes, we muſt not underſtand Church in this Notion; but muſt underſtand it conſidered as organical; and then their power of making Conſtitutions or Canons, obligatory to others, muſt be derived either from the Word of God, or from the Civil Magiſtrate. What power can be pretended from the Word of God, muſt be bottomed upon Acts 15. From whence all that is poſſible to be concluded, is this, That particular Churches of Chriſtians have a power given them by the Word of God, to chuſe fitting Meſſengers, which being ſo choſen, and met together, may conſult and determine, in ſome Eccleſiaſtical caſes. But certain it is, there was never ſuch a National Convention in England; ſo that we need not enquire the matter of Fact, nor the force and power of ſuch decrees, how far, and in what caſes, they do oblige either preſent or future Generations.
§. 13. The power which any Synod, Convocation, or Convention met at any time in England, can pretend to have had, muſt be either from the Pope before the Reformation in the time of King Hen. the 8th. or by vertue of ſome Act of Parliament ſince that time.
§. 14. Our Abſolvers talk ſo much of the Church of England, and the Lawes of the Church and Sons of the Church, by which they mean the Hierarchy (though it will be hard for them interpreting the Church, in that notion to anſwer the Papiſts, asking them where our Church was before Luther; for I am ſure we had no Proteſtant Prelacy before that time) that it will not be amiſs for us to take a view of the Church of England under this Notion, and conſider what power ſhe had (and from whom derived) to make any Eccleſiaſtical Lawes, that ſhould be this day ſo obligatory, that an Oath taken againſt them muſt be forthwith void.
§. 15. We are indeed told by ſome Eccleſiaſtical Writers of King Lucius, who about the year 170. was an Inſtrument of planting the Goſpel in England, and that he in ſtead of the Paganiſh Arch-Flamins and Flamins, eſtabliſhed 28 Archbiſhops and Biſhops, but the evidence of it is ſo feeble, that we find few giving any credit to it, much leſs was the Nation ſo early chriſtianized ſo far, as to have any Synod ſo full, as to make Lawes obliging the whole Nation: Nor indeed is there any Authentick Records of any conſiderable Engliſh Synod till near the year 600; then Pope Gregory ſent over Auguſtine the Monk, to convert the Brittains, and he made haſt in his work, baptizing 10000 in a day. This doubtleſs was the man who firſt founded Prelacy in England (himſelf being the firſt Arch-Biſhop) in conformity to the Order of the Romiſh Church, whence he came; we know that it is ſaid by ſome, that when he came, her found here one Archbiſhop and ſeven Biſhops, but no ſuch thing appears in his Letters, not are their Names, or places of reſidence expreſſed.
§. 16. This Auguſtine by Authority derived from the Pope, appointeth Biſhops, calleth a Synod, and enacteth Lawes, &c. From that time, which was the year 586. to the year 1205. we have no Record of any Eccleſiaſtical Lawes, made in England, the Chriſtians here were doubtleſs governed by the Popiſh Canon Law. Although in that time there were 43 Archbiſhops of Canterbury (if we may believe Chronologers) yet have we no Record of any obligatory Canons were made by them.
§. 17. Betwixt 1205. and 1414. were 14 Archbiſhops of Canterbury, beginning with Steph. Langton, and ending with H. Checkly, theſe all made ſome Provincial Lawes, which are gathered together, and put into ſome method by Lindwood. Within that time the Pope ſending over two Legates; Otho, in the year 1226. 11 Hen. 3. and Othobonus, in the year 1248. which was the 32 Hen. 3. They alſo each of them made parcels of Canons, which were after collected by Johannes de Aton, and were all the Lawes of the Church of England (as they call it) in force. Nor do we read of any more done till the 25 Hen. 8. which was the year 1533. Till this time the Church of England was loſt in the Popiſh rubbiſh, (according to our Brethrens ſenſe of Church, for the Prelates, there was none other, no not one)
§. 18. In that year the Reformation of the Church was begun by Parliament, who made an Act (printed in our Statute Book,) forbidding any of the Clergy from that time, to preſume to attempt, alledge, claim, or to put in ure, any conſtitutions or Ordinances, Provincial or Synodal, or any other Canons; or to enact, promulge or execute any ſuch Canons, &c. or aſſemble to enact them, without the Kings Writ calling them together, and the Kings Highneſs his conſent ratifying them, &c. So that, from that day, no Laws made by the Church could oblige us, unleſs K. Hen. 8. firſt called the Church-men together, and then ratified what they Decreed.
§. 19. As to all former Church-laws, the Parliament in that Act gave power to K. Hen. 8. to call together 32 perſons to review all old Canons, and to collect a body of Canons out of them, being not contrary to the Laws of God, nor the Laws of the Land, which when they had done, K. Hen. 8. was to confirm them; and immediatly upon the review of the old Canons, they were all by than Act abrogated, and nulled, and ſo all Canons alſo after to be made contrary to the Laws of the Nation, &c.
§. 20. Before theſe 32 perſons could be called, and meet and finiſh their work, K. Hen. 8. dieth. The former Act not giving power to the King his Heirs and Succeſſors to call the 32 perſons, K. Edw. 3, 4 Ed. 6. cap. 11.did not do it, till the Parliament meeting in the 3d and 4th year of his Reign, by a new Act, gave him alſo power with the advice of his Council, within three years to name the 32 perſons, which his father ſhould have named.
§. 21. King Edw. the 6. by his Letters Patents, bearing date, at Weſtminſter, 11 Nov. in the 5th. year of his Reign, authorizeth the 32 Perſons (whoſe Names and Powers may be ſeen by the Copy of thoſe Letters Patents, prefixed to a Book called, Reformatio Legum Eccleſiaſticarum.) They met, and within the three years time, reviewed all, and compiled that Book called as aforeſaid, (upon which according to the Statute 25 Hen. 8. The old Canon Lawes were utterly abrogated; but before King Edward had confirmed this new Book, he died: So that there was no Lawes of the Church of England left in any force.
§. 22. Q. Mary ſucceeds, ſhe revives the old Popiſh Canon Law. Q. Eliz. after her reviveth the Reformation: In her time, ſeveral Injunctions and Canons were made. After her time, K. James ſummoned a Synod, Anno 1603. which made 141 Canons, but as Qu. Elizabeths (to our knowledge) were never confirmed ſo much as by the Royal aſſent, ſo the latter were never yet confirmed by Act of Parliament, by which alone (we are told) that our Conſciences can be obliged, is perfect Lawes.
§. 23. It is obſerveable, That in the Statute 25 Hen. 8. authorizing ſuch Canons, as ſhould hereafter be made in Convocations aſſembled by the Kings Writ, being firſt confirmed by the King; It is not ſaid, by the Kings Majeſty, his Heirs or Succeſſors, though in other parts of the ſame Act, thoſe words are added. It is very probable, that the want of thoſe words in the following part of the Act, concerning his Majeſties chuſing the 32 perſons to view the old Canons, was the reaſon why King Edward did not do it (King Hen. 8. being dead) till a new Act was made to the ſame purpoſe, to which latter Act, K. Edw. 6. in his Letters Patents refers, not to that of 25 Hen. 8. Nor is it yet determined whether a Kings confirmation of Canons, makes them Law (according to that Statute of 25 Hen. 8. ſuppoſing that K. Hen. 8. his Heirs and Succeſſors, as well as himſelf were intended in the Statute) any longer than his Majeſties Perſon lives, who ſo ratifies and confirms them. So that it is far from being ſo clear, that we may adventure the violation of an Oath upon it, that we have this day any Canons, or conſtitutions Eccleſiaſtical, of force, either by the Lawes of God or of the Nation.
§. 24. But admit this, where ſhall we find any ſuch Canon as this? That the Government of the Church of God in England, is, and ſhall be by Archbiſhops, Biſhops, Deans, Deans and Chapters, Prebends, Chancellors, Commiſſaries, Arch-Deacons; ſo that it ſhall be unlawful, either for the People of England, in their callings and places, to endeavour the extirpation of that Form of Government, or for the Lords and Commons aſſembled in the Parliament of England, to move for, or to Vote the alteration of it, and to engage People against it by an Oath: Somthing of this nature muſt be proved, before the Covenant will be proved contrary to the Lawes of the Church of England; and if ſuch a Canon could be ſhewed, it is no Law; for it is contrary to the Fundamental Laws of the Nation, giving power to the Parliaments of England, to repeal or alter any Lawes, Statutes, &c. And all Canons, contrary to the Lawes and Statutes of the Nation, are aforehand declared void and null by the Statute, 25 Hen. 8.
§. 25. By what hath been ſaid, appears the vanity of their Plea, who plead that the Covenant is null and void, becauſe againſt the Lawe; of the Church: Let us come now to conſider whether they ſpeak more ſenſe or truth, who pretend it is void, becauſe contrary to the juſt Lawes of the Nation.
§. 26. It being apparent from the former diſcourſe, that there was no Canon-Law of England in any force at the time of the compoſing, impoſing and taking of the Covenant, the queſtion only lies concerning the civil Lawes of the Nation; which according to the Statute, 25 Hen. 8. muſt give all the obligatory vertue, which any Eccleſiaſtical deliberations can have amongſt us.
The Lawes of our Nation are uſually diſtinguiſhed into, The Common Law and the Statute Law. The firſt is not written, and foreign uncertain, as may appear, from the different ſenſes of Judges in their Book-caſes, its matter and form is no other than the ancient Cuſtoms and Uſages of the Engliſh Nation; which having been retained for many years, have been ſo familiarized with the People of the Nation, that by a common conſent they have paſſed, and do paſs for Law, till they are cotrolled by Statute. Our Statute Law is made up of the ſeveral Acts of about 260 Parliaments, and yet is capable of daily augmentation.
§. 27. If thoſe who plead the Covenant contrary to the Lawes of the Nation, mean, The Common Law of England, their ſenſe is no more than this, That by the conſtant uſage of the Nation of England, the Government of the Church in that Nation, hath been by Arch-Biſhops, Biſhops, Deans, Prebends, Chancellours, Commiſſaries, &c. and an Oath (impoſed by the Lords and Commons legally aſſembled in Parliament) taken by the People, tending to the deſtruction of that ancient uſage, is void and null, yea though the King of England (diſliking the firſt impoſing of it) yet afterwards, approveth his Subjects taking of it, and himſelf joynes with them, and alſo taketh it.
Yet neither will this evidence the matter of the Covenant contrary to Law. For in the Covenant we have ſworn, to endeavour the extirpation, &c. The Law which muſt be contrary to this, muſt ſay, You ſhall not endeavour, &c. Now we appeal to all the Lawyers in England, whether there be any piece of the Common Law of England, which ſaies to the Lords and Commons aſſembled in a Legal Parliament, or to the People of England, concerning any cuſtom or uſage in the Engliſh Nation,—You ſhall not endeavour in your callings and places, the extirpation and alteration of it: If there be, ſure we are, the Statute 25 Hen. 8.21. doth control it, declaring a full power in the Parliament of England, with his Majeſties conſent, to diſpenſe, abrogate, null, diminiſh, amplifie any Lawes, &c. But there can no ſuch thing be alledged.
§. 28. So that here's no contrariety to the Common Law: Here is only, The Lords and Commons aſſembled in Parliament (by his Majeſties Writ legally) taking notice that the external Form of Eccleſiaſtical Government amongst us, according to a long uſage of the Nation, in the times of Popery (viz. from about the year 600. till the time of reformation, in the Reign of Hen. 8. and ſince that time, after ſome regulation of it by Statutes) was upon experience found at leaſt very diſconvenient to the reformed ſtate of the Church amongst us, and having power in them (with the Kings conſent to be afterwards had) to abrogate, null, diminiſh, or amplifie, any Engliſh Lawes, uſages, &c. agreeing to extirpate this uſage, and ſwearing, and cauſing the People of England to ſwear with them, that they would in their callings and places endeavour to extirpate it. Whether the King pleaſed to conſent, or no, certainly, they had power, in their callings and places to endeavour ſuch a thing. The Covenant engageth no further: We cannot underſtand any contrariety in this to the Common Law of England.
§. 29. For the Statute-Law of England, we ſhall only ſay this; That the Statute-Law which muſt be contrary to the Covenant, muſt ſpeak to this effect; The Lords and Commons aſsembled in Parliament upon a Legal Summons, ſhall not ſwear themſelves, nor make others ſwear, to endeavour the extirpation of Popery and Prelacy, i. e. the Church-Government, by Archbiſhops, Biſhops, &c. Where to find ſuch a Law we cannot tell: No, nor yet ſuch a Statute, as poſitively determines, That the Government of the Church in England is, and ſhall be by Archbiſhops, Biſhops, Deans, Deans and Prebends, Chancellors, Commiſſaries, &c. It is true we often in the Statutes meet with theſe Names, and we find the Statutes ſuppoſing them, Eccleſiaſtical Officers, and telling us, That the Kings of England formerly founded this Church in Prelacy (what kind of Prelacy, and with what circumſtances they ſay not) but we are at a loſs for any other (ſave this implicit) eſtabliſhment by any Statute Law.
And we further believe, that the Spiritual Lords before the time of K. Hen. the 8, would have taken it in foule ſcorn, that any ſecular powers ſhould have gone about by a civil Law to eſtabliſh them: We have read of the heavy ſtir in King John's time, when the King of England did but pretend to the Nomination of the Archbiſhop of Canterbury, and to what a baſe degree of condeſcention the Pope and his children here in England, humbled their Sovereign for that offer.
§. 30. The truth is no more than this: The Parliament of England in the beginning of our Reformation, being engaged in prudence to drive no further nor faſter in Reformation, than (the Lambs could go) the preſent ſtate of the Nation could bear, which at that time was but very little, the Popiſh party being then the greateſt by far, the Reformed Party ſuch as did but ſee (men like trees) imperfectly diſcerning the things that differ in Religion, were pleaſed to proportion the Reformation, accordingly, ſo as neither, the newly Reformed Party might be loſt by too much ſeeming innovation, nor the remaining Popiſh party exaſperated too far. Hence in matter of Doctrine, nothing was agreed till the year 1562. which was the 4 of Eliz. not ratified by Parliament till 1571. viz. 13 Eliz. (near thirt years after the firſt beginning of Reformation) Hence in the matter of Worſhip, the ſame Lyturgy was continued, which was uſed in the Popiſh Maſs, only leaving out the Prayers to Saints, and for the Pope; and the ſecond Edition of the Common-Prayer, Anno 5 & 6 Edw. 6. was much amended in many things, from that 2 Edw. only in the buſineſs of Kneeling at the Sacrament, Didoclavius obſerveth, it was left at liberty by the Common-Prayer-Book, 2 Edw. but commanded in the Edition of it 5 & 6 Edw. 6. yet not without an excellent Rubrick, to expound the uſage of it (ſtill to be ſeen in the Common-Prayer-Book, Edit. 5 & 6 Edw. 6. viz. Anno 1552. but left out in our ordinary Books, for what Reaſons, let any one read and judge) As to the Form of Church-Government, the reforming Parliaments in the time of Hen. 8. found one in being, and the perſons exerciſing it, in great power; they therefore thought fit not to diſpute that Point, only to regulate that power, which the former uſages of the Nation, and the Canon-Law, had inveſted them with, requiring them, to ſeal with the Kings Arms in their Seales, to do nothing without his Writ,V. Stat. 5 Eliz. 23. &c. Other Parliaments ſince have denied them any aſſiſtance from the civil power to back their cenſures, but in ſome particular caſes, and forbade them to adminiſter any Oath, to fine, amerce, 17 Car.or impriſon any of the Kings Subjects, removing the Biſhops out of the Parliament-Houſe, &c. This is all the eſtabliſhment we can find, that the ancient Hierarchy of England, had by any Law of England.
§. 31. But ſuppoſe they were ſo eſtabliſhed, do our Brethren take it for ſuch an undoubted Goſpel-Maxim, that an Oath taken againſt the Lawes of a Nation, of what kind ſoever, written, or not written, conſonant to, or diſſonant from the Law of God, is forthwith null, and void, and no waies obliging? Do they believe this ſuch a truth, that men may venture the damnation of their ſoules upon it? and venture, the curſe of God cleaving to their houſe, till it hath conſumed the timber thereof and the ſtones thereof, Zech. 5.3. upon the truth of it? They may talk thus in drollery to their friends, or credulous Proſelytes, they may (to ſhew their grandiloquence, and liberty of phraſe) in laxe diſcourſes thus ſpeak in Pamphlets; but we are ſo well perſwaded of ſome of their skill in divinity, and of their other Learning too, that we believe they know, that no Scripture, no reaſon, no creditable authority, will juſtifie any ſuch thing, and they would be loath, that their crime, in theſe ſwelling words of vanity (by which the ſoules of people are enſnared) ſhould be expiated, by that ſlight penance, of any of their ſtanding two or three daies in any of our ſchooles, to defend ſuch an atheological maxim, againſt what Arguments would be brought againſt it, nor would we deſire fairer play in our caſe.
§. 32. 1. In the firſt place, they will certainly grant, that it is falſe, if the Lawes of the Nation to which an Oath pretended contrariant, be contrary to the Lawes of God: For the contrary aſſertion were to ſet up one Higher than the Higheſt: So that if he who hath taken the Covenant, doth believe that the Government of the Church in England by Archbiſhops, Biſhops, Deans, Prebends, Archdeacons, Chancellors, Commiſſaries, be contrary to Gods Word, ſuppoſe that it be eſtabliſhed by Law, or were ſo eſtabliſhed, the Oath doth bind againſt the Law. And certainly if Gods Word eſtabliſheth any Form, it is ſo, for there is in it ne foreign quidem of Deans, Prebends, Archbiſhops, Chancellors, &c.
§. 33. 2. In the ſecond place, Our Brethren will certainly grant, that in caſe the King had immediatly conſented with his Parliament, and impoſed the Covenant, though it had been, expreſly, apertly, poſitively, against any Law or Lawes of the Nation, yet the Oath had obliged, becauſe they altogether had a power to ſuſpend annul, and abrogate any Law. It is true, this Oath was only impoſed by Lords and Commons, the King at preſent not conſenting: We are no Lawyers, nor can we tell how far the power of Lords and Commons extends, as to the ſuſpending of the exerciſe of Lawes, or giving of Oaths. But we have heard, that 2 parts of the legiſlative power of England lies in the Lords and Commons, and that they have of themſelves given Oaths in many caſes, in what caſes, we know not: After this, his Majeſty declares, That thoſe who had taken the Oath, ſhould leaſt offend God and him in keeping of it. His Majeſty that now is, takes the ſame Oath, declares his approbation, &c. Shall it yet be told us, that the Oath is void, becauſe againſt the Lawes, when all 3 States to whom the legiſlative power belongs, have approved of it: Certainly they muſt have an eaſie Faith, that part with it, to ſuch kind of Aſſertions.
§. 34. 3. But ſuppoſe there had been no ſuch thing, but the Oath had been meerly ſpontaneous; Our Brethren ſpeak without their books, in diſcharging mens Soules, upon this Plea. Dr. Sanderſon will tell them, that if the Law be poenal, and hath in it an election, either of doing the thing, or ſuffering the penalty, an Oath will bind againſt the active part. Fortaſſis poſſunt dari caſus in quibus juramentum, quod videtur alicui legi communitatis aut vocationis adverſari et ſi non debuerit ſuſcipi, De juram prom. prael. 3. §. 9.ſuſceptum tamen poteſt obligare: ut exempli cauſa, in lege poenali disjunctivâ. He puts the caſe concerning the Law of a City; That he who is choſen Mayor by the Freemen, ſhall hold, in caſe he refuſeth, he ſhall pay 100lb.
Suppoſe ſuch a Law, and this Law reſpecting this City eſtabliſhed by Act of Parliament; A particular Citizen hath taken a private Oath, that he will never bear the Office of Mayoralty in that City, this man is choſen by the Freemen; What ſhall he do? Not hold (ſaith Dr. Sanderſon) but pay his money; his Oath will bind here againſt the active part of the Law: So that if there were 40. penal Lawes, which might ſeem to eſtabliſh the Hierarchy againſt which the Covenant is directed; the Covenant will bind us againſt them all, thus far, viz, to ſuffer the penalty annexed for not owning them, rather than to own and acknowledge them. But yet further:
§. 35. 4. Let us examine the reaſon, why an Oath ſhould not bind againſt Law: There can be no other pretended, but the dominion which God hath reſerved to Superiors over their Inferiors. So that if this which we call Law, be not clearly an eſtabliſhment of our Superiors, to whom legiſtative power belongs (which meer uſage and cuſtom is not arguing no more than permiſſion of Superiors) or if the Law be an exerciſe of dominion in things ubi non habent dominium; where Gods Word allows them no ſuch dominion, an Oath will certainly bind againſt ſuch pretended Lawes. Hence Azorius well notes, that boni mores ſunt varii, i.e. Azor. mor. qu. l. 11. cap. 6.good manners or cuſtoms are various, ſome commanded by the written Law of God, ſome by the written Canon Law, ſome by the Civil Law. And (ſaith he) that maxim, that Juramentum contra bonos mores non obligat. An Oath againſt good manners, cuſtoms, lawes, doth not oblige, is to be underſtood, if it be contra bonos mores juris naturalis, vel divini Scripti, vel Canonici, ſecus autem eſt, ſi juramentum ſit contra bonos mores jure civili inſtitutos, i. e. againſt good Lawes or manners, commanded by the divine Law of God written, or by the Canon Law; but 'tis otherwiſe, if thoſe good manners be only commanded by Civil Lawes. Sancheſ. l. 3. cap. 9. Suarez l. 2. de jur. cap. 21. Layman tract. mor. l. 4. cap. 6.To the ſame purpoſe determine, Sanchis, Layman, and many other Caſuiſts. The reaſon why they add the Canon-Law, is, becauſe they believe their Church cannot erre; ſo that an Oath againſt their Church Canons, is to them equivalent with an Oath againſt the Law of God.
§. 36. 5. Yet it muſt be granted, that Oaths, in ſome caſes, againſt Civil Lawes, may be void, but it is far from being granted, to be an univerſal Truth: Abbas, Sylveſter, Azorius, Molina, Leſſius, Layman, Sanches, Suarez, all agree that an Oath will bind againſt any civil Law, if the Law doth obligare ad paenam, non ad culpam neceſſariò, i. e. oblige not neceſſarily to ſin in caſe of refuſal, but to puniſhment (which is what we ſaid before) nay the moſt of them add further, that it will bind againſt them,—ubi materia legibus oppoſita ſine peccato ſieri poteſt; i.e. where the matter of it can without ſin be performed; being not contra jus naturale aut divinum.
6. Bartolus, Bartolus de fide juſſor.the great Lawyer gives ſeveral Rules in the caſe.
1. He ſaies, an Oath taken againſt the Civil Lawes of a Nation, made chiefly for a publick good, will not oblige: which Rule, yet Azorius doth not think proved by Covarruvias or Imolas, the friends of Bartolus, in the caſe.
2. An Oath taken to confirm a Bargain. which Bargain is contrary to the Law, will (ſaith he) bind, till the Church abſolves. As if one ſwears to pay an Uſurer more than the Law alloweth the Uſurer to take; or to pay a Thief a Summe of Money, to redeem his life, (ſuppoſing a Law to make ſuch a Contract void) yet the Oath would bind.Sayri claevis regia, l. 11. ca. 13. Upon this caſe Gregor. Sayrus determines, That (ſuppoſing a Law) that all contracts, for the payment of money won by play, ſhall be void, yet if one have ſworn to pay his Fellow-gameſter, he is bound to pay it. He quotes with him in this opinion, Navarrus, Bannez, Salon, Lopez, Med na, &c.
A third Rule he gives is this; 3. If the Oath be only contrariant to a civil Law, made only for the advantage of him that ſweareth, the Oath will bind againſt the Law. We dare not juſtifie all theſe Rules: But we will put a caſe or two to our Brethren, who are ſo free of their pardons and abſolutions in this caſe. All know that it is againſt the Law of England, that a woman (under Covert Baron) ſhould diſpoſe of her eſtate which ſhe hath in Joynture. Suppoſe now her husband proves a Bankrupt, or be impriſoned for debt, or ſuppoſe the woman, her ſelf wants money, and ſhe to furniſh her ſelf, or deliver her husband, borrowes a ſum of money, ſwearing to him of whom ſhe borrows it, that if God lets her live to enjoy her Joynture, ſome Deed which ſhe makes (againſt Law) for the ſecurity of the Creditor, ſhall be made good (though againſt Law) Shall not her Oath bind her? The Law of England expreſly forbids giving above 6lb per cent. for Intereſt: Suppoſe one ſwears, (in his neceſſity to give 8lb per cent.) Will not this Oath bind, think we? in ſhort, Azorius determines bluntly; Quando contractus eſt ſolum jure civili interdictus, jurejurando confirmatur: That an Oath will bind to fulfil a contract only forbidden by a civil Law.
§. 37. We are not altogether ſatisfied in the Popiſh Caſuiſts reaſons, for this determination, we judge this queſtion cannot be well reſolved, without the reſolution of another very weighty queſtion; viz. How far humane Lawes bind the Conſcience; We do believe, that all ſuch humane Lawes as do neceſſarily tend to preſerve the Government, and tranquility of a civil ſtate, becauſe they are confirmed by the Law of nature, and the divine Law revealed, do apertly bind the Conſcience, ſo that an Oath taken againſt them, is forthwith void. But for Lawes, not plain and certain and expreſs, nor having ſuch neceſſary tendency, to the being of a civil ſtate, nor being ſo conformable to the Law of Nature, or written Law of God, whether they lay ſuch an hold on the Conſcience as to make void an Oath, we think deſerves our Abſolvers ſecond thoughts, poſſibly the taking of ſuch Oaths, might be at firſt inadviſed and unlawful, but being taken, that they are voided by ſecond thoughts, that the matter of them was againſt Law, we cannot but a little doubt and believe our Brethren have few Caſuiſts, or other Divines of their minds in the caſe.
§. 38. Nor yet is this our caſe, where the Lords and Commons legally aſſembled in Parliament, to whom (though not ſolely) the legiſlative power belongs, do themſelves take, and require others to take an Oath, to endeavour the extirpation of a Form of Government, which they apprehended inconvenient; which it is true was eſtabliſhed by the uſage of a long tract of time, but no poſitive Law was exiſtent, directing it as the Government of the Church in England (though ſeveral indeed ſuppoſed it) that an Oath ſo directed and impoſed, doth not oblige againſt ſuch a pretended imperfect legal eſtabliſhment, is we confeſs, a piece of divinity, the depth of which we cannot fathom, nor yet believe that there is any truth in it. If any of our Brethren in earneſt think otherwiſe, they ſhould do well to bring forth their ſtrong Reaſons, or to tell us what one Divine, Ancient, or Modern is of their minds: till that time, it is ſufficient for us out of a reverence to the ſacred Name of God, to diſſent from them in this notion, proved as yet, by no Scripture, no reaſon, nor any creditable authority.
§. 39. For what ſome tell us, that this Covenant was againſt Magna Charta, the Petition of Right, &c. they appear to us ſcarce to have read either. The latter ſaith not a word of the Government of the Church. In the former, there is only this general Article;—We have granted to God, Magna Charta cap. 1.and by this our preſent Charter, have confirmed for us, and our heirs for ever, That the Church of England ſhall be free, and have all her whole Rights and Liberties inviolable: And may ſhe not be ſo, though Prelacy by extirpated? Are Archbiſhops and Biſhops, &c. more concerned in Magna Charta, than Abbots and Priors? Yet what are become of their Liberties? Was not the priviledge of Sanctuary, of making Canons, &c. ſome of thoſe Rights? Yet are they not taken away by Act of Parliament? Surely ſo may the Church-Governours mentioned in the Covenant.