SOBER ADVICE TO CHURCHWARDENS, IN A LETTER TO A CHURCHWARDEN IN LONDON, From his Friend out of the Country, And may serve indifferently for Constables, and others, who are required to make Presentments for not going to their Parish-Churches, & Communicating, etc.  
Id Tantum possumus quod Jure possumus.  
LONDON, Printed for F. Smith Senior, at the Elephant and Castle, in Cornhill. 1683.   

Kind Friend,  
I Received yours, and am hearty sorry to hear of the severity used and intended against Protestant Dissenters, for their Nonconformity; because I am throughly persuaded many of them are sincere and harmless in their Dissent, and give as good Testimony of their being so, as we generally do of our sincerity in our Dissent from Popery; however cannot be condemned to Penalties without Infringement of our Protestant Principles: But since some of our Ecclesiastical Rulers and Judges are not of this mind, but requires by public charge that all Persons Aged above Sixteen Years, should take the Sacrament now at Easter, or to be presented by the Churchwardens or Minister of the place, to be proceeded against by Excommunication, with all its grievous Concomitants and Consequents, whereof perpetual Imprisonment is now in the least. You desire my advice; What you, being sworn Churchwarden, should do in this case? You are very loath to have so great a hand in the Ruin of your honest Neighbours for their Conscience towards God, and on the other side you must be true to that Duty, which you have obliged yourself before God to perform. You know (my Friend) I am not one of the Learned in the Common nor Civil Laws, and therefore can only tell you what course myself a private Person, willing to keep a good Conscience towards God and towards Men, would do in such a case. And you are pleased to tell me, you therefore desire my advice, because that I being of like condition, and in like circumstances with yourself, am more likely to give advice fit for you than they whose education has enured their minds to Subtleties and Quirks of Law. I can easily grant the Reason you give of your Choice to be good, but I cannot allow your application of it to me; for though I am resolved in the power of God to be honest, yet there is another quality wanting to make me a fit adviser in so nice a case, to wit, an understanding well exercised in discerning between good and evil, and things indifferent: But I may remember, you only desire to know my opinion, you do not oblige yourself to follow it, neither would I have you to do so, without better Judgements than I can pretend to, except you find my Reasons to be convincing.  
In the first place I am sorry you have taken the Churchwardens Oath, which obliges you; to Execute the Office of a Churchwarden in your Parish for the ensuing Year, according to his Majesty's Laws Ecclesiastical, for its a difficulty scarcely to be overcome by the most Skilful, to resolve what Ecclesiastical Laws are in force, what not, therefore beyond your capacity to execute according to what you know not, and give me leave to mind you by the way, that Reason, Equity, and Religion requires, that we should never proceed to imputation of Crimes or Executions of Penalties in doubtful Cases. In matters of favour and benefit we may be liberal, but in matters of hurt and damage to our Neighbour, we should be so far from any thing of that nature in a controverted point, that we should not go to the utmost the Law allows, though in a most clear Case. Now if the Statute of 1 Edw. 6. chap. 2. be revived by Repeal of that Statute which Repealed it, the Ecelesiastical Persons ought to use the King's Name and Seal to their Processes, and their holding Courts in their own Names is contrary to Law. However, it is at least doubtful, whether they have any legal Power, and likewise whether any of their Cannons have any force of Law; If then you make presentments to those Courts, whereby your Neighbour is vexed and endamaged, you know not but you may therein be injurous to your Neighbour without legal Authority, which no wife and conscientious Man will venture.  
But, Secondly. I conceive that a Man chosen Churchwarden, may lawfully refuse that Oath, as being contrary to Law, as may appear by a Statute made in the Thirteenth of this King, chap. 2. and incited in the prohibition for Waterfield, where it is enacted that it shall not be lawful for any Archbishop, Bishop, Vicar, General Chancellor, Commissary, or any other Spiritual or Ecclesiastical Judge, Officer, or Minister, or any other Person having or exercising Spiritual or Ecclesiastical Jurisdiction, to Tender, Offer, or Administer to any Person whatsoever, the Oath usually called the Oath ex Officio, or any other Oath whereby such Persons to whom the same is Tendered or Administered, may be charged or compelled to confess, or accuse, or purge him or herself of any criminal matter or thing whereby he or she may be liable to Consures or Punishments. But I am persuaded that no Man that makes Conscience of an Oath, but will find himself obliged by the Laws Ecclesiastical (supposing all those to be in force which the Official says are in force) burdened and compelled to confess, or accuse himself of some criminal matter or thing, and therefore such Oath ought not to be Administered to him. However, having taken that Oath, you must endeavour to perform it as well as you can without breach of the Laws of God, or Laws of the Land, which latter must always give place to the former, and by them be made new or interpreted.  
In the next place as to the business of presenting those of above Sixteen Years of Age, that come not to the Sacrament at Easter. First, I say it is contrary to Christianity and all civility of Neighbourhood, to present a Man as a Criminal, so to expose him to so dreadful a Sentence as Excommunication, and all Calamities that attend it, without first discoursing their Neighbour to know what he can say for himself in Vindication, for in this Case the presentment of one or two Churchwardens, is of as much force, and more dangerous consequence than the presentment of Twelve or more of the most substantial Men of the County, in civil Cases, and therefore the least that the Churchwarden can do, is to hear what his Neighbour can say for himself, before he put him into so much trouble and danger, as such an accusation amounts to. For there may be divers lawful and reasonable Excuses of a Mans not coming to Church such a Month, or not coming to the Communion at Easter; as for instance, suppose a Man be Sick and not able to come, or have had business abroad for One, Two, or Three Months together at the time of Easter, are not these and such like lawful Excuses? I remember the Statute of Eliz. 23. chap. 1. (to retain the Queen's Majesty's Subjects in their due obedience) made against Papists, (but now put in use against Protestants) says, That every Person above the Age of Sixteen Years, which shall not repair to some Church or Chappel, or usual place of Common-Prayer, but forbearing the same contrary to the Tenor of a Statute made in the First Year of Her Majesty's Reign, for Uniformity of Common-Prayer, etc. shall forfeit, etc. now that Statute referred to, has this exception in it, (viz.) Having no lawful or reasonable excuse to be absent, which plainly shows there may be lawful or reasonable excuse of being absent from Church for a Week or Month, and consequently of not taking the Sacrament Administered at that time, therefore I conclude the Churchwarden or other Officers, who present any of his Neighbours as guilty of such a Crime before he have heard what he can say for himself, is Unjust, Unchristian, and Unneighbourly; Unjust, because the light of Nature will not permit it that any should be condemned unheard; Unchristian, because the Law of Christ commands us not to Judge lest we be Judged, and consequently Unneighbourly, because somewhat more of civility ought to be showed to Christians that are of the same Vicinage, then to Men as Men, or to Christians barely as Christians.  
Perhaps you will say, it is sufficient for you to ground an Information or Presentment upon, that in Fact a Man did not come to his Parish Church, or did not take the Sacrament there at Easter, and that if he have any lawful or reasonable excuse, he must urge it upon his Trial before the Judge or Commissary. But Sir, would you be so dealt with? Be charged with a Crime that has heavy Penalties attending to it? Be put to the trouble and expense in Defending yourself in a Court where some Men love none more than their own Souls? When if their Officer would but take the pains to speak with you, you would easily Vindicate yourself from that charge? Besides, it is to be considered that all Juries, Grand Juries, and others, are chosen out of the Neighbourhood, as being therefore supposed to know what may be known of the Innocency or Guiltiness of a Person they Accuse or Condemn, and they are Twelve at least, sometimes Twenty One of a Grand Inquest, that if some be Ignorant, others may be knowing in the Matter and Person brought before them, and they must be honest and free, and legal Men, such as the Law in every circumstance requires, if there be but One in Twelve, otherwise their proceed will be null and void.  
But Sir, Your Presentment, as I have said, hath the validity of the Presentment of a full Grand Inquest upon Oath; Nay more, (except when the Cause of Recusances come before a Grand Inquest) for upon your Presentment the Bishop or his Official concludes your Neighbour Guilty, and will perhaps not admit of his lawful excuses, not as in other Cases, bring Witnesses face to face to prove him Guilty; for you have already convicted him by your Presentment; again, in numerous Parishes, such as you have about London, it is impossible for you to know whether every one did Communicate, and therefore you can only say, that so far as you know such a Man or such a Woman did not Communicate, and that shall create your Neighbour no small vexation, though at length he proves that he did Communicate in his own Parish, or in some other Church or allowed Chapel, and that you are mistaken in your sworn Presentments.  
But you will now ask me, is it my place to Judge what are lawful or reasonable excuses, must not I leave that to the Ecclesiastical Court, whose Duty it is to determine such matters.  
I answer, I have already shown you that in your Presentment, you are presently both Accuser, Witness, and Jury; So that the Proceed in that Court are of the Nature of a Plea, after Conviction, as is in another Court brought against the Sentence ready to be passed, for as in a Civil Court the Party found Guilty, is asked what he has to say, why Judgement of Execution should not pass upon him? So here the Spiritual judge does but in effect asle a Man what he has to say, why the Penalties of such a Crime should not be Executed upon him? And since you are in a real Sense a Judge, all the Reason of Mankind will oblige you not only to hear, but to determine concerning the circumstances of the Action you are to Judge.  
Is it reasonable or consistant with the Liborties of English Men, that a Man should be liable to suffer so great Vexation and Damage, as the Presentment of the Churchwarden puts him to, and the Churchwarden not at liberty to Judge of his reasonable Defence against that Vexation? When in a Civil Court for a Crime or Trespass, to the value of a Groat, a Man shall have First Twelve at least of his Sworn Neighbours to pass Judgement upon him; every one of which must be satisfied the Accused Party has no reasonable excuse, that is, every one must be satisfied that there is sufficient Evidence of his Gild by their own Knowledge, or credible Witnesses, or Oath, and after that the Accused Party and the Witnesses must be heard together, to the satisfaction of Twelve Jurors more, who must every one agree to the Condemnation or else he shall be cleared, but in the Spiritual way of preceending the business of the First Twelve or Grand Jury, perhaps of Twenty Three, and of Witnesses, is all done by the Churchwarden, that's most manifest, and the Verdict of the other Twelve, or Pettit Jury is also given by the Churchwarden; and the Spiritual Judge has no more to do but to pass Sentence, as the Civil Judge doth when the Verdict is brought in. 
* For his admonishing Men thrice in a Breath, is in itself a Penal Sentence, being but a Prologue to Excommunication and Imprisonment, especially when things impossible are required; but that's impossible, which a man cannot do without Sin.  The vast difference between those two ways of Proceeding, shows, that the one is of Rome, the other of England. But must the Churchwarden do the Work of two Juries toward the Ruin of a Man and his Family, and not judge of a man's reasonable Defence against his Sentence?  
Thirdly, If the Churchwarden must not judge of lawful or reasonable Excuses, but must present Men, merely because of Omission to take the Sacrament at Easter, then how comes it to pass they can dispense with their Obligation of presenting those that notoriously offend in other matters, and even themselves for the most part, if not all of them, to which Presentment they are equally obliged? For by the 109. Canon, supposing them in Force (which is a great Question, or rather out of Question, not being confirmed by any Act of Parliament) they are obliged to present those that offend their Brethren by manifest Drunkenness, Swearing, Usury, or any other Turpitude or Wickedness. By the Statute of 1 Eliz. ch. 2. All persons are obliged to endeavour themselves to resort to their Parish Church, or some other place, having no lawful or reasonable Excuse to be absent upon every Sunday and Holiday. Now I persuade myself, that in ordinary, there are but few People, or Church wardens themselves that are not guilty of the Breach of this Statute most Holydays in the Year: And the Churchwardens know it perfectly: How is it then that they do not present them, except that they either know or presume they have some lawful or reasonable Excuse to be absent, and if they take upon them to judge of reasonable Excuses in this Case, so as to excuse, themselves from the Breach of their Oath, why not in other Cases also, and particularly in the case of Communion at Easter, wherein they certainly know there may be the like Excuses? And the same Argument will hold in the case of those that come not to Church, etc. in a Month, contrary to the Tenor of this Statute, who are punishable by the Forfeiture of 20 l. a Month, by the Statute of 23 of Eliz. ch. 1. made against Papists.  
Fourthly, This Statute of 1 Eliz. makes it not absolutely criminal, Not to resort to their Parish, or some other Church, but not to endeavour themselves to resort, etc. Now a man may endeavour to resort, etc. tho' he do not perform, being hindered by some lawful or reasonable Let; 
* Nay, I am well assured, that many who resort not to their Parish Church, etc. do endeavour themselves to resort, more by far than those that do: They read, confer; study and pray more for Satisfaction in the Lawfulness of it.  so that a Churchwarden that presents a Man for not coming to his Parish Church for a Holiday or a Month, without consulting with him whether he had any reasonable Excuse of being absent, or whether he was not at some other Church or Chapel; and without judging of reasonable Letts, is injurious to his Neighbour beyond the Statute; and if he may not judge of lawful and reasonable Excuses; but must present a man notwithstanding, he makes a false. Presentment, because he does not know whether it be true or no that a man did not endeavour to resort to Church, It may be false; and if it be true, it's more than he knows, tho' upon Oath he pretends to know it; so commits Perjury: He swears neither in Truth nor Judgement, nor Righteousness, Jer. 4, 2. And why may not a lawful or reasonable Let come in a Man's way at Easter, as well as at another time? Which if it were so, the Churchwarden ought not to conclude him guilty of a wilful omission and therefore ought not to present him.  
Fifthly, In crimes there is the matter or fact, and the manner or Circumstances of that fact, the matter or fact is for the most part neither good nor evil, but according to Circumstances which make it the one or the other. So under the Law of Moses, God commanded to rest on the Sabbath day, but if a man had fallen into a Ditch on the Sabbath it was evil to rest, and not Labour to lift him out, for it was lawful to do so for an Ox or a Sheep, so in our Law, one may kill a Man, and be Innocent when he does it in his own Necessary defence; but if in malice he is guilty of Murder: So to take a Man's Sword from him on the Highway is robbery, if it be done with a Felonious intent; but to keep a Man from doing himself and others a mischief it is good and lawful: In like manner, he that will present a Man to a Court to be punished as a profane Offender, (as the Bishop of London speaks in his Order) for not coming to Church and receiving the Sacrament at Easter, ought first to be assured that he did it with a profane Mind, and had no lawful or reasonable Let to excuse him.  
Having now, my Friend, shown you that your Presentment has the force of a Verdict, and the refore you ought to hear what your Neighbour has to say for himself before you bring in the Verdict of your Presentment to the spiritual Judge for him to pass Sentence upon him: Having also clearly proved (as I suppose) that you are to judge of lawful and reasonable Excuses, and that you do it most frequently in other cases: It remains now that I say something of lawful and reasonable Excuses: The first Rule I shall lay down to discern them by shall be general, even that general Rule of our Saviour, Whatsoever ye would that men should do unto you, do ye even so unto them. If your Neighbour give as good Testimony of his Sincerity in the Christian Religion as you yourself, or at lest no Cause to the contrary, that which you would have to be judged a reasonable excuse in your own case, that ought you to think in his case. I describe your Neighbour here to be in Appearance an honest and true man, because you are to believe what he says in his own Defence; which if he were a man of ill Fame, you could not reasonably do; but if a man be of as good Credit as yourself, or you hear nothing against him, I see not how you can avoid giving the same credit to him you would have another give to yourself. (This is to be understood of such causes, as, admit not of outward Evidence besides a man's own Testimony) How otherwise do you love your Neighbour as yourself? which the Ap. James says is the Royal Law according to the Scriptures; and Christian Charity is that which believeth all things, hopeth all things; to wit, which he hath no good Grounds to disbelieve and doubt.  
I prosume then that you and every Churchwarden will judge, that Sickness of the Party, or any Relation, whom he or she cannot in duty Wave without great danger, or also journeying in forreinparts about a Man's necessary Occasions, or in our own Country about sudden business that will not admit of delay, are reasonable excuses for not presenting one's self and communicating at his Parish-Church at Easter; and there may be many other excuses of the same Nature, which I will not Trouble you to enumerate: But from hence I assume, If the manifest danger of ones Health, or the very probable damage of a Man's worldly Estate, Credit or Liberty, be reasonable excuses to be admitted by the Churchwarden; how much more reasonable and to be allowed is that excuse of sinning against God by doing that which he cannot do in Faith or with a persuasion of its lawfulness when divine Authority says, Whatsoever is not of Faith is Sin? For it were better for a Man to lose all his Estate, his Credit, his Liberty, yea and his Life too then sin against God. But he that judgeth any thing required of him to be sinful and doth it, he certainly sins: For he that in the Apostles time eat of those meats, which were lawful to be eaten, judging them to be forbidden, or even doubting whether they were lawful, that Man was guilty of sin and liable to be damned for the same. He that doubteth is damened if be eat, because: he eateth not of Faith, Saith the Apostle Paul, Rom. 14.23. I will grant that it may so fall out that a Man may be so minded that he sins both ways, whether he do that which is required or forbear it; but that is, when he his absolutely obliged by God to do it, and he through an Ignorant or ill informed conscience thinks it unlawful; but in the case we discourse of, our Bishops and Ministers acknowledge that in the things doubted of, by those that do not frequent their Parish Churches there is no obscure command of God why they should be done, they become a Duty (say they) by Humane Authority, which may be with-drawn, and being with-drawn they are no longer any Man's Duty, now how it comes to be in the power of Christians, to imposer upon their Fullow Christians, to do those things which no Law of God or Christ oblige them to, and which their Fellow-Christians account unlawful or doubt of; and to punish them for Disobedience, when their Obediance would be a sin against God, I leave you to determine. But if neither you, nor your Minister, nor yet your Bishop can remove the doubts of these christians, and if they behave themselves as Christians in Obedience to all things that Christ requireth of them, in Profession of Christian Faith, in Christian Worship and Prayer, in the Celebration of the Lords Supper as they understand Christ to have commanded it, etc. If you will not admit these People to be reasonably excused of their absence from their Parish Church, I doubt Christ will not exchse you of injustice and uncharitableness at the great day: I confess the Prosecution of these People with penalties is not so great a Sin as the Apostle Paul caused Christians to commit when his Name was Saul, before his Conversion; for he compelled them to Blaspheme; and sinning against one's own conscience in a matter of Circumstance is not so bad as blaspheming of Christ against ones Conscience, but the same Apostle says in a less case, When ye sin so against the Brethren and wound their weak Conseiences ye Sin against Christ. 1. Cor. 8, 12. now that which you Brother cannot do without Sin, and that which you cannot prosecute him for not doing without Sin, should (me thinks) be a reasonible excuse both for him and you.  
Obj. You will perhaps urge against what I have said, that there is no other way, but this of presenting them for not coming to Church, to convict Papists of Recusancy; and that they also as well as Protestants may escape upon the pretence of Conscience, so the Laws in these cases provided, be made of no effect.  
Ans. To which I answer, that the case of Protestant Dissenters and of Papists is not the same, but far different: For the reason why Papists do not communicate with Protestants in Parish Churches is, Their acknowledgement of a foreign Power and Authority Superior to that of the King and the Laws of the Land, namely, the Authority of the Pope of Rome, who is the declared Enemy of the King, and the People being Protestant's whence it is that their not coming to Church is an effect and indication of that acknowledgement, and against them were the Statutes of the 1st. and 23d. of Queen Elizabeth made, the last whereof is: An Act to retain the Queen Majesty's Subjects in their due Obedience, and the Presace gives this as the reason of making that Act, viz. That divers all disposed Persons have practised, by other means than by Bulls to withdraw divers the Queen's Majesty's Subjects from their natural Obedience to her Majesty, to obey the usurped Authority of Rome and in respect of the same, to persuade great numbers to withdraw their due Obedience to her Majesty's Laws established for the due Service of Almighty God.  
For it is observed by the Lord Coke in his charge at Norwich, and by others, that not any Papists, during the first ten years of that Queen's Reign, did refuse to come to Church; that Cornwallis, Beddingfield and Eylyard, were the first Recusants in the beginning of the eleventh year of her Majesty's Government: And then Pope Pius Quintus being informed by some English Jesuits, that such was the number of Roman Catholics here, is if he would Excomunicate her, they would presently enter into an open Hostility, with force sufficient to depose and utterly supplant her Highness, and re-establish the Roman faith, whereupon the Pope does Excomunicate her, and Plots with the King of Spain to invade her: Then did the Papists withdraw themselves from our Churches: Thus you see it was not Conscience of Duty to Christ as it is in the Protestant Dissenters, who own no Authority on Earth but the King and the Laws; but Veneration to the Authority of the Pope the Queen's Enemies and implaceable hatred of all Protestants, that led Papists together to forsake the Church and their Allegiance, and still contiwes them Recusants; so that it is the true intent of the Law, that it should be executed against Papists; upon this Ground it was, that (as I am well informed) a Grand Jury of Middlesex, having Presentments brought against several great Papists, would not find the Bill against them for not going to Church till the Constable or Witnesses had given Testimony that they were commonly reputed to be of the Roman Religion, and that the Clerk had inserted in the Bill of Indictment, Pontificiam Religionem Profitentes, wherein (I judge) they did pursue the true Intent of the Law, in that case provided.  
If you shall still insist, and say, that Papists do religiously give this Authority to the Pope, I answer, First, that that Opinion is so manifestly contrary to Reason and Christianity, that every man that uses Reason, or owns Christ's Religion, except Papists themselves, must condemn it. Think you that a Mahometan, or a judicious Heathen, upon a fair Hearing of both Parties, would judge the Pope's Pretensions to his Infallibility and Supremacy reasonable, or in the least doubt of their Invalidity? But, Secondly, They that would have Liberty of Religion and Conscience, do not pretend to such that is incosistent with the Sovereignty of Independent States and Kingdoms, in things necessary to civil Society; much less to such a Liberty as shall permit Religious Enemies to cut their Throats whenever they can by Watchfulness find an Opportunity? Such is that Conscience which this Objection pleads for, as may appear by what I have said above: And the very thing I am pleading against, is, The depriving Men of their Properties and Liberties upon any Pretence whatsoever, saving for a Crime that's inconsistent with common Liberty and Property: But the Consciences of Dissenters require nothing but a Liberty to that, which if it were not forbid, would be so far from being hurtful to the Commonwealth, that it would rather be a Virtue, nothing detracting from, but conducing to the Common Good. And I hope every honest Man will make a difference between those Laws that are necessary to the common Could, and those that are made merely for the Pleasure of the Lawgivers; and which others, as wise and Christian as they would either null or make contrary. Surely the Consciences exercised about the Obedience of these two sorts of Laws, are far different one from another: And that our Penal Laws, so far as they respect Dissenters, are of such a Nature, as that they are not now to be pressed upon Protestants who have the Opinion of the House of Commons in the last Parliament at Westminster, Gentlemen of as good Credit for Wisdom, and Love to Protestantism, and for Estates and Interest in their Countries; as perhaps ever was seen in England; wherein it was resolved nemine contradicente, That the Persecution of the Protestant Dissenters upon the penal Laws, is at this time grievous to the Subject, a weakening to the Protestant Interest, an Encouragement to Popery, and dangerous to the Peace of the Kingdom. Jan. 10.  
And now methinks, Sir, you should have as great Respect to the Opinion of the whole Nation of Commons in Parliament, as you have to the Opinion of his single Grace, my Lord Archbishop of Canterbury, from whom this Order for prosecution of Protestant Dissenters by Presentments, Excommunications, etc. issues in flat Contradiction to the Opinion now mentioned, especially considering withal the Doubtfulness of Ecclesiastical Jurisdiction and Laws; and all the rest that I have said and argued in this Case, which I presume may have some Influence upon you and any rational honest Man. I pray you consider in the Fear of God, in Honour of Christ and his Religion, and in the Love of your Christian Neighbours; and do what such Consideration shall direct you to. Take the safer Course, which is always the more moderate in penal Matters. Be sure you act not against Conscience, neither compel others so to do.  
Your affectionate Friend and Servant. April 14. 1683.  
FINIS.