A BRIEF DISCOURSE, PROVING JNDEPENDENCY, IN Church-Government, Destructive to the Positive Laws of this KINGDOM, and inconsistent therewith.  
By ROBERT DERHAM, of Gray's Inn, Barrister.  
Published according to Order.  
July 13th LONDON, Printed for Thomas Bates, at the Maidenhead on Snow-hill, near Holborn Conduit. 1646.   

To the Reader.  
Courteous Reader,  
IF thou be'st Jndependent in thy opinion, yet (I hope) thou art not an enemy to the Laws of this Kingdom, which are thy Birthright, as well as thy Possessions: Peruse this Work without passion or partiality; see if thy tender affections will suffer thee to divide the Child, I mean, the Temporal, and Ecclesiastical jurisdiction, which if done, must needs prove destructive and fatal to both.  
They are Twins, lovingly embracing each other; seek not thou to sever this unity: they are acquainted with each others wants and defects, having such sweet intercourse the one with the other in legal proceed: endeavour not thou by estranging them the one from the other, to endanger the ruin of both, lest thou unhappily prove not only a Patricide, but Occisor Patriae. I will say no more, but commit thee to God and his goodness.  
Farewell.   

A brief Discourse, PROVING JNDEPENDENCY IN CHURCH-GOVERNMENT Destructive to the Positive Laws of this Kingdom, and inconsistent therewith.  
THe subject that I intent to debate at this time, is not, whether Presbyterial or Independent Government in the Church simply of themselves considered, be most warrantable by divine Authority, but how they stand with relation to the Laws of this Kingdom, for that shall be the compass of my thoughts at this time; wherein I shall not labour to justify the Laws of this Realm by the sacred Rule expressly, for surely some of them 
Con … fall to the people of this Nation, so as it cannot possibly be ruled by any other Law, being Customs made by themselves, 〈◊〉 Prince being the Low-giver, many Statutes, especially in this Discourse mentioned, being declaratory of these Customs, sworn to by Kings and People; Anathema on them pronounced that seek to alter any of the fundamental Customs or Laws, Praemunire, high Treason by Law.  or the most are praeter Scripturas, not Contra, they being laudable constitutions generally received, yea, allowed by God's Word implicitè, though not explicitè: so that they may be inconsistent with the Independent Government in the Church so much now contended for, (although we should admit the said jurisdiction warranted by Holy Writ) and yet no blemish to the Civil Magistracy. Come we then to the point, What say the positive Laws, which are the common Law, or Statutes?  
The common Law and Statute in this particular, appear in the Act of 1. Elizabeth 1. for that Act is but declaratory of the ancient common Law, as it was resoved in Cawdries Case by all the Judges of England, not of any new Law introductive, The words of that Statute are, That such Jurisdiction ecclesiastical, as by any spiritual or ecclesiastical power hath heretofore been, or may be lawfully exercised, for the visitation 
The King's Laws limit and bond the Ecclesiastical jurisdiction. 5. Eliz. 23. Co. Iurisd. of Courts, 321.  of the ecclesiastical Estate & Persons, and for Reformation, Order, and Correction of the same, and of all manner of Errors, Heresies, Schisms, abuses, Offences, Contempts and Enormities, shall for ever be united and annexed to the imperial Crown of this Realm: and that her Highness, her heirs and Successors, shall have power to nominate Commissioners to exercise all Jurisdiction ecclesiastical in the causes beforenamed etc. So that although the high Commission (grounded upon this Act) be taken away, yet the Jurisdiction still remaineth in the imperial Crown, to be dispensed in these causes before named, as the ancient Law of this Land, also in all other causes Ecclesiastical, the King by his Ecclesiastical Judges ministereth justice, wherein if a man be injured in any Court, he may have redress, by Appeal to a higher Jurisdiction, and for default of Justice in the Ecclesiastical Courts, last of all to the King, as supreme, in his High Court of Chancery, as appeareth by the Act of 25. H. 8. cap. 19  
See here justice subordimately ministered, and the King or civil Magistrate in all Causes Ecclesiastical supreme in point of Jurisdiction.  
Now that the Independent Government in the Church takes away all 
* In civil causes as well as others, until the offendor be cast out of the Church, and then you may appeal to the civil Magistrate, not before; in matters of personal injury only, not in matter of scandal.  Appeals in matters pertaining to their cognizance, I suppose needeth no proof at all, it is so clear: Their very title and name intimates as much, they are Independent, viz. they depend upon no other Court of Justice, to give account of their Actions judicially by Appeal or otherwise. They stand not at Caesar's Judgement-seat, that is, the temporal Magistracy, they are like the great Potentates of the Earth, accountable to none but God, in case injustice be found in their judgements; if in their wisdom's error appear (as Humanum est errare) you may fill 
justification of Independency by Chidley.  the skies with complaints bootless. If any shall be censured in their Judicatories, for profanation of the Sabbath, by working on that day, tippling in Alehouses, or the like, if he be injured, he cannot have justice elsewhere, whereas the Ecclesiastical and Statute Law in those cases give Appeal, as appears by 25. H. 8. before mentioned, 4. Jacob. 5. 3. Caroli 1. In all which cases, if he be proceeded against by Censure Ecclesiastical, or Temporal, he hath remedy by Appeal, error, or other legal course to right himself if injured.  
If in Doctrine or Discipline, this Independent Governor with his Assistants shall be heretical, erroneous, or scandalous to the Government, or any particular person▪ no remedy, but as it is truly said of the Divine Majesty, Confugiendum à Domino i●●to ad Dominum placatum. Whereas by 2. H. 4. 15. 13. Eliz. 12. he is to be censured for heresy by the Bishop of the Diocese, and to be delivered to the secular power to be burned. And if he shall maintain any Doctrine contrary, or repugnant to the Articles of the Church of England, and penist therein, he is to be deprived of all his Ecclesiastical promotions, and further to be punished by the Ecclesiastical Law, as appears by 13. Eliz. aforesaid.  
If he shall preach any Doctrine scandalous to the Civil Government, he may be indicted at Common Law, and punished according to the quality of the Crime: In all which cases, there lieth remedy by Error, or Appeal.  
See now, at one view, how many Laws are nullified by this strange and unheard of power, I might instance unto 
See C●wd●ies case, where they are recited.  you throughout all matters, of which the Ecclesiastical Jurisdiction hath cognizance, Ancient, or Modern, the same mischiefs follow; no Appeal, no Redress.  
Besides the Common Law and Statutes many and numerous depending upon the Ecclesiastical Law, corroborating, strengthening, or assisting, woven and interlaced with them, are all at one blow cut off, and destroyed.  
Also the Common Law Courts (à fortiori, than the High Court of Parliament) have supreme Power in moderating the exorbitancies of the Spiritual Jurisdiction, if the Spiritual Courts encroach upon the Common Law, yea upon one another, (as it hath been too familiar of late times especially) 
See before, he is free in all cases, so long as he continues in the brotherhood.  the Kings-Bench, or Common Pleas, by prohibition, have power to curb, and restrain them, although the Common Law holdeth no Plea of them.  
I need not to give you some examples, the Law is so plentiful herein: I believe Independency frees from the 
If they will not cast out of their Society a heinous offender against the laws, what remedy?  Power of the Civil Magistrate in Matters, Coram non Judice, as the Law saith, as well as in Causes, within their cognizance.  
But peradventure it may be objected, their Power shall be regulated, their Jurisdiction shall be known, and if 
Upon the point they will assume all dispensation of justice in all cases to themselves, and the civil Magistracy shall be contemptible.  they exceed their limits, they shall be under Censure of the Law.  
If this should be admitted, (which how true it may be I know not) yet in causes pertaining unto them, it will not be so, they will grant no dependency upon the Temporal State in matters Ecclesiastical; the Common Law nor Parliament shall have nothing to do with their judgements, which supreme Power hath been by great Antiquity invested both in the Common Law, and in the High Court of Parliament; yea, although in things pertaining to spiritual Jurisdiction, and the ground of this, you shall see presently.  
I will cite you but two Statutes, by which you 
See the preamble of the said Act of 21. H. 8. Parliaments have power not only to dispense, but to abrogate, adnull, amplify or di … shall human●, Ecclesiastical, or Temporal laws, by natural equity and good reason.  shall perceive that both in Doctrine and Discipline in the Church, the supreme Power hath rested in the civil Magistrate, and doth so continue to this day: the one is 25. H. 8. 21. granting the Parliament power to enact any thing not repugnant to Holy Writ, yea even in matters of Faith, and Doctrine in the Church, also note the words of this Act further, viz.  
Not minding to seek for any reliefs, succours, or 
Nota.  remedies for any worldly things and humane Laws, in any cause of necessity, but within this Realm, at the hands of your Highness, your Heirs, and Successors Kings of this Realm, which have, and aught to have an imperial Power and Authority in the same, and not obliged in any worldly causes to any other Superior.  
Where observe the largeness of the words, (Humane Laws) comprising whatsoever in Doctrine not repugnant to Scripture, or Discipline, for the Government of the Church, by the King, and his great Council, the Parliament, shall be judged expedient; as you may see in another branch of this Act immediately foregoing it must be intended, (The King) viz. in his politic capacity conjoined, and united with his High 
What will become of independent Synods, if no Synod be to be called but by the civil power?  Court of Parliament, for so are the express words of that branch, giving the King Power with the Nobles and Subjects, and so must of necessity the second branch be interpreted; the other Act is 25. H. 8. 19 enacting no Constitutions Ecclesiastical of force, or to be of force, without the royal assent; 
None to be made in fut. without leave.  and that none be executed repugnant to the Laws of this Realm,  
What now becomes of this Independent-Government, 
Those already made to be perused by the Parliament.  if it be contrary to the Laws of this Realm, (as it is manifest it is) unless you destroy 
Co. Iurisd. of Co. tit. Convocation.  the King's Ecclesiastical or Temporal, or Civil Laws, yea the great mulcts added by the Laws of this Land, by way of assistance, or corrobation to many spiritual offences by fine, and imprisonment, death, etc. ut poena ad paucos, metus ad omnes perveniat; wholly lost, and taken away by this new frame of Government; for sure this Independent State will never demand that Power, since no Ecclesiastical Jurisdiction ever of right enjoyed it: I mean the Power to fine, and imprison, only Power of imprisonment granted to Bishops, and others, having Episcopal Jurisdiction, and that of Priests only, but still the power of Appeal saved by 1. H. 7. 4.  
What will also become of their power of Excommunication, Major or Minor, unless they crave aid of the Civil Magistrate, to have a Writ of Excommunicato Capiendo, who will regard their excommunication, it will be but contemptible without the Laws of this Realm, to aid and assist them: Thus you see they enervate half the Laws of this Kingdom, yea their own strength, as formerly I have showed you by this Anarchy, as I may term it.  
They make their own power despicable, being they seek to abrogate those Laws which do and must strengthen and assist their Jurisdiction, unless you will say they shall have that vast Power of fine and imprisonment , which surely will never be granted unto them; for that were Misera Servitus, that a man's body should rot peradventure with imprisonment, his Salvo Contenemeno mentioned in the Laws of this Land so often, destroyed; and yet no Habeas Corpus, the precious liberty of the Subject, in course of Justice, to be obtained, nor any prohibition or legal proceed, to rectify these enormities: The Turkish tyranny were as tolerable.  
Thus I hope I have plainly proved the Ecclesiastical State must in all things be (in Doctrine and Discipline) subordinate to the Civil Government, as before is specified, or else you nullify and destroy the Laws and Statutes of this Kingdom.  
It remainoth now to show you the reason why Parliaments of this Land have always exercised this supreme Power over the Ecclesiastical State, one reason was, I conceive, because the Civil Law which concerneth much the Ecclesiastical Jurisdiction here established, used the same power in the time of the Roman Emperors, both before and after they had received the Christian Faith, for the space of three hundred years after Christ, and the distinction of spiritual and temporal causes in point of Jurisdiction was not then known, but all Power was in the Civil Magistrate. But afterwards out of a zeal they had to grace and 
Se● Ridley in his view, 115, 116, 117.  honour the godly, and learned Bishops of that time, they were pleased to single out certain special causes, wherein they granted Jurisdiction unto the Bishops, namely in cases of Tithes, because they were paid to men of the Church: in causes of Matrimony, because Marriages were for the most part solemnised in the Church; in causes Testamentary, because Testaments were many times made in extremis, when Churchmen were present, and therefore they were thought the fittest persons to take the probate of such Testaments.  
Howbeit these Bishops did not proceed in these causes according to the Canons and Decrees of the Church (for the Canon Law was not then hatched or dreamt of) but according to the Rules of the imperial Law, as the Civil Magistrate did proceed in other causes, neither did the Emperors in giving this Jurisdiction unto them give away their own supreme, and absolute power to correct, and punish the Judges as well as others, if they performed not their several duties. This then is most certain, that the Primitive Jurisdiction in all these causes was in the civil Magistrate, and so in right it remaineth at this day: and though it be derived from him, it remaineth in him as a Fountain: for, every Christian Monarch, as well as the godly Kings of Juda, is Custos utriusque Tabulae, and consequently hath power to punish, not only Treason, Murder, Theft, and all manner of force and fraud, but also Incest, Adultery, Perjury, Usury, Simony, Sorcery, Idolatry, Blasphemy; neither are these causes, in respect of their own quality or nature, to be distinguished one from another by the names of Spiritual, or Temporal: For, why is Adultery a spiritual cause rather than Murder, when they are both offences against the second Table? or Idolatry rather than Perjury, being both offences against the first Table? And truly, they were not so called from the nature of the Causes, but from the quality of the Persons, viz. The Clergy being men intended to live secundum Spiritum, whom the Prince made his subordinate Judge in these Causes; and this distinction of Temporal and Spiritual Causes began first in the Church of 
Nota.  Rome, where the Clergy having (by this Jurisdiction) got great wealth, their wealth begot pride, their pride ingratitude towards Princes who first gave them their Jurisdiction, and then, according to the nature of all ungrateful persons, they went about to extinguish the memory of the benefit; for, whereas their Jurisdiction was first derived from Caesar, in the execution where of they were Caesar's Judges, so as both their Courts and Causes ought still to have born Caesar's Image and Superscription, as belonging unto Caesar, they blotted Cae●ars name out of the Style of their Courts, and called them Courts Christian, as if the Courts holden by other Magistrates, had been b●t Courts of Ethnics, in comparison; and the Causes which were merely Civil in their nature, they called Spiritual, or Ecclesiastical; so as, if the Emperors should again challenge their Courts and Causes, and say, Reddite Caesari qua sunt Caesaris, they would all cry out on the other part, and say, Date Deo quae sunt Dei. Our Courts bear the Name and Title of Christ, the Superscription of Caesar is quite worn out, and not to be found upon them: And this point of their policy is worth the observing, That when they found their Jurisdiction in Matrimonial Causes to be most sweet, and gainful of all other, (for, of Matrimoney they made matter of Money indeed) to the end, that Caesar might never resume so rich a perquisite of their Spiritual Jurisdiction, they reduced it into the number of the seven Sacraments: After which time it had been Sacrilege, if the Civil Magistrate had intermeddled with the least matters that had relation to Matrimony, or any dependency thereupon. Hac ille.  
Thus you see the power of the Civil Magistrate supreme over the Ecclesiastical State, and some grounds and reasons of it cleared, many other might be given, but I think I have said enough.  
Now to draw to conclusion. 
They exempt not only the Clergy, but all the brotherhood, not only in criminal cases, but in civil also, until be be cast out of the society or brotherhood Thus you see they exceed the Romish Church.  Indeed (as to me it seemeth) this Independent Government in the Church is derived from 
Note. They will erect ten thousand Indicatories in England, and as many Doctrines, whereas the Doctrine of the Church of England ought to be one and the same, 21 H. 8. 21. 13. Eliz. 12.  the Church of Rome, who have always in all ages laid this as the foundation of their pride, where they have prevailed, to exempt the Church and Clergy from secular power, attempted in England, even of late times, in the time of King Henry the eighth, by the Clergy here in matters criminal, as appeareth in the legal reports of Keloway, and in the times of other Kings practised more ancient, as Henry the third, and others.  
Thus briefly liberavi animam meam, let every man use his liberty in censure, Utere tuo judicio, nihil enim impedio. My wish is, that they which sit in the high places would well weigh the premises, and do that which is consistent with this Government, whose proceed we pray may be prosperous; yea we wish unto them good luck in the name of the Lord.  
FINIS.