A Case of Conscience Resolved

Question 1.

W Hether the King (considering his Oath at Coronation to protect the Clergy and their Privileges) can salvâ conscientiâ consent to the abrogation of Episcopacy?

Affirmation.

When I consider, first, That there is no hope of the Kings or Kingdoms safety, without an union between our King and Parliament. Secondly, that such an union is tantum non impossible, unless the King condescend in the point of Episcopacy. Thirdly, for the King to condescend renitente conseientiâ, though it might gratify us, it would be sinful to him, and so he should forfeit inward to procure outward peace, and be represented to times in the glass of Conscience, to adventure the Heavenly to retain an earthly Crown. Fourthly, the Oath taken at the Kings Coronation hath been pressed by some learned pens with that probablity, that may stumble a right intelligent Reader, neither have they that I know, received any satisfactory Answer in print. I conceive it may be a work worthy some pains to resolve this case, and clear your objections, that while they stand unanswered, cast an ill reflection both upon the King in condescending to abrogate Episcopacy, and the Parliament in pressing him to it. Now the bond of the Kings Oath may be taken off two ways. Either by clearing the unlawfulness of it that it was vinculum iniquitatis, and so void the first day, for qui jurat in iniquum obligatur in contrarium. And if Prelacy in the Church be an usurpation contrary to Christ's institution, then to maintain it is to sin, and all bonds to sin are frustrate. And truly, as Prelacy stood with us in England, ingrossing all ruledome in the Church into the hands of a few Lord Bishops, I think it may be cleared to be an usurpation by this one Argument. That Power that despoyles any of Christ's Officers of any Privilege, or duty indulged or enjoined them by the word of God; that power is an usurpation against the word. But this Prelacy did, as it stood in England. Ergo, English Prelacy was an usurpation against the word of God. The Major is clear of itself. The Minor is thus proved. Presbyters are by Christ's warrant in Scripture endued with power to rule in their own Congregations, as well as preach; see 1 Tim. 3.5. and 5.21. Heb. 13.17. 1 Thess. 5.12.

Now as Prelacy stood in England, the Presbyters were not only excluded from all society in Rule, but which was much more prejudicial to the dignity, and liberty of the Ministry, were subjected to a lay Chancellor; and was not here usurpation against God's direction?

But though this way of invalidating the Kings Oath be most satisfactory to some, yet to those that are not convinced of the unlawfulness of Episcopacy it will not hold, and so it would cast the resolution of this doubt about the Oath, upon another Question touching the lawfulness of Episcopacy, which is a larger field. I shall therefore endeavor to show that though for Argument sake it be granted that Episcopacy be lawful, yet notwithstanding that his Oath, the King without impeachment may in this circumstance consent to the abrogation of Episcopacy.

The usual way of clearing this assertion is thus. The King is sworn to maintain the Laws of the Land in force at his Coronation. Yet no man questions, and the constant practice shows; that it is not unlawful after to abrogate any upon the motion or with the consent of his Parliament. The meaning of the Oath being known to be to maintain the Laws while they are Laws, but when they are abrogated by just power in a regular way, they are then wiped out of his charge and Oath. So the King by his Oath is bound to maintain the rights of the Clergy while they continue such. But if any of their rights be abrogated by just power, he stands no longer engaged to that particular: And this I conceive to be a sound resolution. For the Kings Oath is against acting or suffering a tyrannous invasion on Laws and rights, not against a Parliamentary alteration of either.

But here steps in my first opponent, and though he dispute modestly, only proposing what he holds forth to serious consideration, yet he objects subtly and his discourse runs thus. The Oath for maintenance of Laws is made populo Anglicano to the people of England, and so may be taken off by a future Act, because it is by their own consent represented in Parliament. But the Oath to maintain the privileges of the Clergy, is made to such a part of his people clero Anglicano, and particularly taken by him after his Oath to the whole Realm, which were needless unless it meant some other obligation. This seems (saith the learned Author) to make it a distinct obligation, and not releasable without the Clergies consent.

I answer. Taking it for granted that the Oath is thus taken by the King. That Oath was so framed, when Clerus Anglicanus the Clergy of England, was a distinct society or Corporation (as I may so say) à populo Anglicano, from the people of England. This distinction between the Clergy and Laity we may observe in our Historians. Daniel in the life of William the first, gives this for a reason why the Clergy did so willingly condescend to him, because they had their Province apart, whence they supposed a security to their Privileges, however the Laity were enslaved. The same distinction of the Clergy and Laity is observed by him in the life of Henry the second, pag. 83. And this was not only in England, but in other Nations, as it is observed by Marsilius Patavinus a Learned writer in Popish times. Secularium petentes fastigia in legum lationes seorsum ab iis quae Civium universitatis proruperunt: omnem Clei •• abbine decernentes exemptum: Civile sebismas, & principatuum supremorum pluralitatem inducentes ex lipsis, quam velut impossibilem human quieti certam •• jus inducentes experientiam demonstravimus 17 ^o . 1 • . Marsilius Patavinus defensi pacis, part. 2. cap. 23. Now being the Clergy and Laity were distinct bodies; the Clergy holding their rights by Privilege distinct from the Laws of the Land; an Oath to maintain the Laws of the Land secured not them: But as another body they had another Oath for their security. But now this distinction of the Clergy from the Laity, that they should be a distinct Province of themselves, being a branch of Popery, is with it quite extinguished: And Laity and Clergy are now one body Politick, and under the same power and Rule. For all privileges of the Clergy that are contrariant to the Laws of the Land, were abolished in the reign of Henry the eight. As undoubtedly that was, that any society should be exempt from secular power, for that was to set up two Supremacies. And therefore though the Oath be continued in that order that it was when the Laity and Clergy were distinct bodies; yet now that this distinction is abrogated, and they are made one, the oath to the Clergy cannot be stronger or more inviolable, then that to the Layetie for the preservation of the Laws of the Land. Both subject to regular alteration.

Who knows not that one of the privileges of the Clergy was, for the Bishops to sit and vote in the house of Peers, yet that is abolished as incongruous to their calling. And then why may not the removal of their Ecclesiastical jurisdiction be consented to, as well, if it prove inconvenient and prejudicial to the Church? The abolition of the one is no more against the oath, then of the other.

Again, when this oath was framed, the Church was endued with the ignorance of the times, with divers unlawful immunities, in all which respects the oath was invalid, being vinculum iniquitatis, and some were pared off as light shined forth. And why may not the great Revenues of the Bishops with their sole jurisdiction in so large a circuit, be indicted and convict to be against the edification of the Church; and it be found more for the glory of God, that both the Revenue be divided to maintain a preaching Ministry, and their jurisdiction also, for the better oversight and censure of manners. And then is there as good a plea, notwithstanding the oath, to alter this useless Anti-Evangelical pomp and domination of a few, as to antiquate other immunities arising from the error of the times, not the tenure of Scripture. Were indeed the privileges in question, such as were for the advantage of the Church, to further her edification; or had the Prelates been good Stewards and innocent in the use of them; then had the plea carried a fairer show: But there having been so many forfeitures by abuse, and those great promotions and jurisdictions, being as unwieldy to a Spiritual soldier, as Saul's Armor to David; and so do not further, but hinder the work of the Gospel, where strong holds are to be vanquished not by carnal pomp, but spiritual furniture mighty through God, 2 Cor. 10.4. I see no just engagement to maintain such cumbersome greatness, adding only glory to the person, not vigor to the main work of a Minister of the Gospel.

Again, thus I angue. If the King may consent to alter the Laws of the Nation, notwithstanding his oath, then so he may also the Clergies immunities. For those rights and immunities, they either hold them by Law or otherwise. If by Law, then the Parliament which hath power to alter all Laws, have power to alter such Laws as give them their immunities, and those Laws altered, the immunity ceaseth, and so the Kings engagement in that particular. If their immunity be not by Law, it is either an usurpation without just title, which upon discovery is null. Or it was given by Papal power in times of darkness, which being an Antichristian usurpation is long since abolished in this Kingdom.

The Author illustrateth the force of his argument by an example holding forth an inconvenience. Where public Faith is given for money, it is not releaseable by Parliament, without consent of the party: for if it be, it is in effect no engagement: so &c.

An. There's a great deal of difference between an engagement made to persons, on valuable consideration, and that which is made gratis to an office or society subservient to public good. Of the former kind, is the engagement to pay sums of money of whom they were borrowed for public good, which is indispensable without the consent of the lender? Of the latter sort, is this engagement to the English Clergy. Now engagements to a Society to maintain their rights, indulged for the personal worth of present incumbents, or to promote the usefulness of that office. If in their matters they prove prejudicial to the office, or the succeeding officers by their ill demeanour forfeit them, their engagement becomes alterable: There's no injustice done to make a Law to overrule, or alter this engagement. There's no question of power in the Parliament to over-rule it: for in the former case of money, if King and Parliament should ordain release of the engagement, the engagement were gone in Law though not in equity; The Order would be valid in Law though injurious: So if there be no injury, the King and Parliament may cancel any obligation. And where there is forfeiture by miscarriage, or the privilege indulged to a Ministry (which ought to hold nothing but for public good) proves prejudicial; the abrogation will be just as well as Legal, there will be no injury done.

But take it at the worst, it is but for the King to get the Clergies consent, and I hope in this case they will not be so tenacious of their wealth, and honor, as to let the Crown run an hazard rather then lay down their Mitres, and endanger the whole Land to be brought to nothing rather then themselves to moderation: I cannot but have a better conceit of the major part of them at this time, which will amount to a consent, and that in this Authors judgment takes off the scruple about the oath.

Besides this Argument, there be other insinuations brought in by the fain Author, that it would be dishonorable to the Kings memory, to be an unfortunate instrument to pull down Cathedrals, and impoverish them, &c.

Ans. To abolish Prelacy, and seize the revenues of Prelates to private or civil Interest, undoubtedly could neither want stain nor guilt. Such kind of impropriation as happened in the days of Henry the eight was cried out of all the Christian world over. Illam bonorum Ecclesiasticorum dissipationem cum detestando sacrilegio conjunctam, tecum, & cum bonis omnibus deploramus, scelus universo erbi commune, saith Beza in resp. ad Sarac. de gradibus minist. pag. ult. But who knows not the great defect amongst us, of congruous maintenance for parochial Pastors, by whom the work of the Ministry is chiefly to be performed? And if those large revenues of the Prelates were diverted to supply with sufficient maintenance all the defective Parishes in England, there would be no danger of Sacrilege: And this would not be to ruin, but to rectify the devotion of former ages, and turn pomp into use, and impediments into helps. A work, for which following generations should not need to pity the King, as put upon it by misfortune: but rise up and c • ll him blessed, whose many other disasters ended in so good, and useful a work.

Had the motives of Heary the eight been as honest to cast off Papal usurpation, as the Act was holy; and the improvement of Abby Lands, as conformable to Divine Law, as the dissolution of Abbeys to the Rules of Divine wisdom; He might not only have been honorable in our Annals: but if I may so speak, a Saint in our Calender. It was the defective circumstances of actions in themselves glorious, which made them a dishonor to him, though advantageous to the Church, which ill circumstances being avoided in the thing in question, God and good men will highly approve it, which is the only real, and regardable honor. Thus far my first opponent.

My second Antagonist exceeds the first, both in subtlety, and peremptoriousness; for he plainly affirms, that the King cannot desert Episcopacy without flat perjury; and hence falls foul, both on those that would force him to it, and also on those moderate Courtiers that for peace sake counseld it. He disputes thus There's difference between Laws and Oaths; where the supreme jus Dominii is, there is a power above all Laws, but not above their own Oaths, in whom that power is; for Law binds only while it is a Law, that is, till it be repealed. But an Oath binds as long as it pleaseth him to whom it is taken: The reason is, because the subject of supreme Power may cedere jure suo, and oblige himself where before he was free: which if they do by promise, Justice binds them to performance; but if by an Oath (the matter being lawful) then are they bound in Religion, and Conscience, for an Oath adds a religious bond unto God. If this were not so, no Oath were binding to them.

I answer. First, it's a ground laid down by this Author in the same place; that no Oath is obligatory beyond the intention of it; and then I first propose it to consideration, whether the intention of this Oath be not only against a tyrannous invasion on the rights of the Clergy, not against an orderly alteration of them, if any prove inconvenient, and to protect them against violence, not against legal ways of change. For, first, this is as much as it is rational for a King to undertake, and therefore in right reason the Oath should have no other sense, if the words of the Oath will bear it, as the words of this Oath will. Secondly, this Oath to the Clergy, must not be intended in a sense inconsistent with the Kings Oath to the people, first taken for their protection in their Laws, and Liberties; for then the latter Oath would be a present breach of the former, and so unlawful. Now one of the privileges of the people is, that the Peers and Commons in Parliament, have power with the consent of the King, to alter whatever in any particular estate is inconvenient to the whole. And therefore he cannot afterwards engage himself to any partionlar estate, to exempt it from this power; for by that Oath at least cessit jure suo, in this Authors judgment. The Clergy and their privileges are subject to the Parliament, or they are not; I hope they will not now claim an exemption from secular power. But if they be under Parliamentary power, how can it rationally be conceived to be the meaning of the Kings Oath, to preserve the privileges of the Clergy, against that power to which they are legally subject? or how were the Oath in that sense consistent with the privileges of the Nation, formerly sworn to by the King? If the Oath had such a sense in the times of Popery, when the Clergy were a distinct corporation; yet when that exemption was abolished, as a branch of Antichristian usurpation, the change of their condition must needs change the intention of the Oath, unless they will say, that the Crown stands still engaged to them, to maintain such privileges, as by Act of Parliament were long since abolished; which is to make his Oath to them contrariant to that taken before, for the maintenance of the against legal alteration of their privileges by Parliament, makes it unlawful, and so not obligatory. And if it be not intended against legal alteration, the King may pass a Bill for the abolition of Episcopacy, when his Houses of Parliament think it convenient, and petition for it without violation of his Oath.

Secondly, I answer from the expressions in the Oath it self, as they are set down by the same Author, pag. 74. To protect the Bishops, and their privileges to his power, as every good King in his Kingdom in right ought to protect, and defend the Bishops, and Churches under their government. Here you see the engagement put upon the King, is but to his power, as every good King ought in right to protect, &c. Now such power is no further then he can do it without sinning against God, and being injurious to the rest of his people. When then he hath interposed his Authority for them, and put forth all the power he hath to preserve them; if after all this he must let them fall, or support them with the blood of his good Subjects, and those unwilling too to engage their lives for the others privileges; I think none need question, but that he hath gone to the extent of his power, and as far as good Kings are bound in right, for it is not equal to engage the lives of some to uphold the honor of others; that were to be cruel to many thousands, to be indulgent to a few. Suppose a King put a Commander into a City, and give him an Oath to maintain the privileges of it, and keep it for him to his power; and this Commander keeps this Town till he have no more strength to hold it, unless he force the Towns-men to arms, against that privilege which he hath sworn to maintain; If this Governor now surrender this Town upon composition, doth he violate his Oath? I think none will affirm it; Such is the case with the King in this particular; when he hath gone as far in their protection as is consistent with the weal of other his Liege people, which he is sworn to tender; he hath protected them to his power, and his obligation is no further by the words of the Oath.

The only objection (as I conceive) which lieth against this is, that though it be not in the Kings power to uphold them, yet it is in his power not to consent to their fall.

Ans. If the King should be peremptory in denial, what help would this be to them? such peremptoriousness in this circumstance might endanger his Crown, not save their Mitres. Besides, though it be in his power to deny assent to their abolition, in a natural sense, because voluntas non potest cogi, yet it is not in his power in a Moral sense, because he cannot now deny consent without sin; for if he consent not, there will evidently continue such distraction and confusion, as is most repugnant to the weal of his people, which he is bound by the Rule of government, and his Oath to provide for.

Thirdly, I answer, that this opponent in this dispute, argues upon this ground, that the Supremum jus Dominii, even that which is above all Laws, is in the King; which under favor, I conceive in our State is a manifest error. There's a Supremacy in the King, and a Supremacy in the Parliament; but the Supremacy, or the Supremum jus Dominii, that is over all Laws, figere or refigere, to make or disannul them at pleasure, is neither in the King nor in the Houses apart, but in both conjoin'd. The King is the Supreme Magistrate from whom all power of execution of Laws is legally derived. The Parliament is the Supreme Court, by which all other Courts which derive their power for execution of Laws from the King by his Commissions are to be regulated; and the King and the Parliament are the Supreme Power to make and disannul Laws. Since then this Supremum jus Dominii, that is over all Laws, is not in the King, He cannot lawfully make any engagement to any, against the Laws, and Legal rights of others; for that were not cedere jure suo, but alieno. This Oath then to the Clergy, cannot engage him against the legal Privileges of the people, or Parliament; which he is bound to maintain; one of which is to be ready by confirming needful Pills, to relieve them against whatsoever grievance they suffer from any. And thus, I think the case is sufficiently cleared, that notwithstanding the Kings Oath to the Clergy at his Coronation, he may consent to the extirpation of Prelacy out of the Church of England.