TO your Second Letter received last Thursday with the inclosed Dissertation, I cannot but yield the Debt of an Answer somewhat sooner, because I perceive you expect it so fully; tho I could scarce at any time set about such a Task as you set me, more incommodious­ly, as being wasted with such a Grievous Catarrh, Hoarsness, and Soreness, that as I was constrained on that Thursday, to break off my [Page 4] constant Attendance at Church this Lent, and keep close within Doors; so next day to confine my self to my Chamber, and pro­cure help for the following Lords day. But beginning through Gods goodness to be better at ease, I would not deferr to give you mine opinion of the Book. And that in the first place of the sour Title; which I confess offended me, as I suppose it will o­thers lying under the same Guilt with me, which he makes very Notorious, and of that nature, whereby the nature of the Church of England is shaken, and her Reputation deeply wounded, not so deservedly, nor justly, as is insinuated or rather openly charged; as I suppose will in some measure appear in the Sequel of my un­polished Discourse, and very hasty, as you may gather from the short time and long Letter.

But lest it should be imagined that I offend in the like sharpness, or prejudice against the Author, I do here premise this sincere profession, That I do discern a great deal of Ingeniousness, Acute­ness, Nervousness, and Weight in the Discourse. And that being (as may be drawn from some Passages) given to the Study of the Law of this Nation, he should shew such an unusual Zeal for the Power, and established Orders of the Church, which I would to God, were with no less Conscience observed by the Clergy it self, this not excepted, which he contends for so vigorously. And that I flat­ter not him, nor dissemble with you, may be attested in part by your self, who know I restored the Usance of Ministration at the Communion-Table, or rather introduced it where it was not heard of in the Memory of Man: and so continued it for 7 years, when for causes, some not touched by him, and some endeavoured to be refuted by this Author, I desisted. I would not therefore be look­ed on at any hand at present, as going about to confute what he delivers: but upon your request, deliver mine own Thoughts some­what diverse, not contrary to his, and that in these in Proposi­tions.

First, I do fully Grant, and firmly believe, that it is most a­greeable to the mind of the Church of England, that the Office called the second Service be performed at the Communion-Table; Circumstances remaining the same, as when it was first so institu­ted. For seeing Circumstances do vary the case egregiously, the in­tention of the Author of such Orders is to be judged from the Motives, and Ends inducing to such Constitutions; which ceasing, or changing, the Intention of the Ordainers may be said to cease and [Page 5] change likewise: and consequently, the Obligation to observe the first Institutions according to the rigour of the Letter: Exam­ples or Instances whereof I shall afterwards give you.

In the mean time I must here note how wide the Author of that reproachful Title to his Papers is [to wit, Parish Churches turned into Conventicles] from making the Omission of Ministration at the Lords Table, Conventicling, or Phanatical. For, what (I beseech Mr. H.) is Conventicling, or Phanaticism which I make Synonymous (however some that call themselves the Sober Dis­senters would fain deny this?) Doth it consist in simple Omission of some part of the Service absolutely, and not rather in these two things principally, and in my opinion Essentially? First to have a contrary judgement and affection against the Established Ly­turgy, and as far as safely and successfully they may, strennuously to oppose the same? And if a man be far from any of these Di­stempers of mind and actions, yet neglects somewhat enjoyned (for that we may suppose at present, which we shall Question here­after) rather than opposes, is there no favour to be shown him, but he must be condemned for a Phanatick, and his Ministration for Conventicling? Or are the Parish Priests Phanatical, who observe not Holydays, and the Service of Wednesdays and Frydays? Or ra­ther are they not (according to this Gentlemans Rule) worse than Conventiclers; as I think before God they are, who come not to Church, nor go to Conventicles, but on Publick Days of Wor­ship profanely stay at home. Surely as perverseness, and obstina­cy in errour, are by the Learned judged the formal part of an Heretick: So likewise is it of a Schismatick, or Schismatizer; the Material part being the errour it self of no small impor­tance.

And this is the second Reason distinguishing Omssion at most of a Circumstance in Publick Worship from Conventicling: For see, and judge indifferently the whole worship of Conventiclers. Is it not in Matter and in Form both, and also in all Circumstances as much different from the Church-worship, as they well can to bear up the Name of Christian? Doth it not wholly proceed from their own humane Brain? An intolerable crime with them, when they whom they have made their Adversaries cannot alledge direct and express Scriptures for all they say, or do in Gods Worship? I am of St. Hilary's mind of old, That not the love of Walls sacred, alters the Worship, but the Doctrine and Worship rather changes, [Page 6] and unhalloweth the Place: And when the Imaginations of pri­vate men are graced with the Fabrick of a Lawful Church, the Church is disgraced into a Meeting-Room, or Conventicling place. But where a Circumstance, and that of Place is only changed, I am quite of another opinion, unless this be done out of Opposition. For what if we should suppose a Minister should be so absurd as to change the time of the second Service, and keep his due place of the Communion-Table, reading it after Dinner? This would be worse than the former, but still it would not be Conventicling, un­less all Irregular Worship makes a Conventicle, which if so, it may make it Popery too, and with better Reason, such as the Phanaticks never dreamt on, or dared never to utter. For Papists divide not their Service into several Places, but keep their Station where they began, using some variety of Gesticulations. But I have spoken more under this Head than I intended, and therefore break from hence to,

The second Proposition intended, and that is, That it doth not ap­pear that the Church of England hath given any direct Precept for reading that part of the Communion Service at the Lord's Table, which is to end without Actual Consecration. This I am to make good by two Ways, First by probable Circumstances begetting this Persuasion, Secondly by Examining the Pregnancy and Validity sup­posed in the Reasons to the contrary mentioned and urged by Mr. H. My first Part I shall endeavour to make good by fetching some­what farther my Conjectures. For I suppose 1. that the constant pro­fession of our Church in following the Scripture as a true Rule of Doctrine and Worship, and that as interpreted by the most Anci­ent, Sound, and Holy Church of Christ met here with no Obstructi­on or Exception; little or no cause being given her to swerve from her professed Rule of Charity and Conformity. Now, as I have (if my memory fail me not) intimated unto you in Personal Discourse, I do not find that any where in Ancient Churches, nor at this day out of England, in Reformed or Unreformed, in Eastern, or Western Churches, that the Office of the Church was so divided, as that one part of it should be said in one Part, or Quarter of the Church; and another in another Part; but where it began, there it ended.

It may seem therefore a more necessary than curious Inquiry, to learn whence our Church took up that Custome so strange every where else. For tho after greater Concourses of Christians, for their greater benefit drew down the Office of the Church from the [Page 7] Eastern Part, and Quire, into the Body of the Church, for better Distribution of the Service among the Multitude, yet still, the Office designed for the day was entirely compleated in one Place. Neither can it be said that our Desk-Service, or common daily Ser­vice is a distinct Service from that of the Communion Service, which some alledge, others making a threefold Service by vertue of the Litany added to the rest, upon Special days, which I think can scarce be made good; yet if all this were true, (which I shall rather yield, than here dispute) still we shall want an ancient Precedent to war­rant this division of our Service into sundry Places.

For as for that Ancient Distinction of the Missa, into that of the Fideles, and the Catechumeni, whereof that consisted in the Celebra­tion of the Lords Supper and the Communicating therein; This was called Sicca, because there were only certain Prayers preliminary and common to all, designed for Baptisme, as well as Baptized, without Consecration: and therefore was also sometimes call'd Nautica, be­cause it might be used at Sea, on Ship-board, where they judged it not safe to consecrate, yet (as I was saying) in one and the same Place when joyntly used, they were performed. This Distinction mentioned coming nearest to the Resembling and Justification of our stop of the Communion Service, where there is no Consecration, at the end of the Prayer for the Holy Catholick Church, is much as­serted by Bartholomaeus Nervius in his defence of Cassander, page 890, 891 of Cassanders works. And is acknowledged by Chemnitius Exam. Trident. pag. 363. Part. And more largely by Cassander himself out of Waldensis, Socrates, and Durantus, in the 34 Ch. of his Liturgies. Which I chuse to speak of here, as well to justifie the like Practice in our Church, as also to shew, that such Distinction in the Office can be no sufficient ground to just ifie distinct Places of Worship: And therefore we are to fetch the causes from some other ground than this: And I am of opinion, that such search will be lost Labour out of our own Church: And that in our own Church will be found a Singular Oeconomia, (as St. Chrysost. would call it) and Condescension to gain, in the Spring of our Reformation, by all means, some.

For in truth I am not so well read in, or so well remember, the Antiquities of our Church, as to be able to say when the Desk or Reading Pew in the Body of the Church, came first to be appointed, tho I remember some no modern Articles of Bishops Visitations en­quiring after them, as appointed. But when ever they were first [Page 8] appointed, I presume to say; That they were intended not for Pray­ers at all, but for Reading the Scriptures and Homilies to the peo­ple in the English Tongue, which they had not the happiness a little be­fore, at all to enjoy. But the whole Service of the Church was, as in Ancient Churches, all at the Altar, as they call it, the People then having not forgotten to gather together before the Priest, and hum­ble themselves, as formerly in times of Popery: For they had not drunk in the Popular Superstition of following Teachers, scaring them, as Children, with Bugbears of Superstition in places. And when the ordinary daily Service was brought into the Desk, as most commodious, at the time of celebrating the Lords Supper, which was adjudged then requisite to be continued, all Holydays, and Sun­days the Communion Service was continued as formerly, at the Al­tars, as at first, or the Table, in the stead and place of the Altar. And I do really believe, but cannot demonstrate, that until the first Book of Edward 6. enjoyned, all the Reformed Service was as formerly, at the Altar. But in that first Book I find no Rubrick directing the Service in the Body of the Church, or Chancel: But in the 2 Book of Edward 6. this Rubrick is premised. The Morning and Evening Prayer shall be used in such places of the Church, Chappel or Chancel, and the Minister shall so turn him, as the People may best hear, &c.

Here is mention made of the most commodious Posture at one Place for the People to hear: But no mention at all of divers pla­ces, either in the first Service, or in the second, where is order taken more especially for proper Habits at the time of celebration of the Communion, but nothing else, implying but one Place, as yet. Now when the Places become distinct by erecting a Reading Pew, I am of opinion, that it was then, and after permitted to Officiate then in the Second Service (as we call it) in the Desk, till the Ca­non of Consecration, which the Ancients would call the Canon of the Mass, began. For in such Junctures, and Cases, I believe it was the command of the Church there only to minister.

And from hence I gather a Solution of the Riddle, and of the Ob­jections made for the Direct Precept of our Church for Ministring the whole Office of the Communion at the Lords Table. The Difficulties and Arguments for the Indispensable Obligation to it, are founded upon the certain Command, which I grant ought Religi­ously to be obeyed, that command certainly appearing. Command Direct none is pretended, but Indirect, and Implicite is endeavoured [Page 9] to be proved by Mr. H. and others from a two-fold Rubrick, the one requiring that the Minister stand at the North end of the Table, which he cannot do, unless he be there. This is very true. But can he not be there, unless he be commanded to be there? Or may he not be commanded to be there, when he actually is to celebrate, and so have Rules appointed how to order his Actions, and Station through the whole, but this must oblige to that place when the cele­bration doth not follow, nor is intended?

Again, it is argued from a Rubrick saying, Then shall the Priest return to the Lords Table. And this say they necessarily implies that he was there before. I grant it. But the question is not con­cerning his being there upon some occasions, and having been there upon such occasions (as namely preparing for a Communion before Sermon) he must return thither again having ended his Sermon. This teaches how he must demean himself when he is there, but does not prove that indispensably he must be there at all times, when so much, and no more is said, as reacheth to the proper Office of consecration. That this is no Querk or groundless Evasion, will competently ap­pear from the Rubrick immediately going before, which is this, Then shall follow the Sermon, or one of the Homilies already set forth by Authoirty. Let them tell me now, whether this be not a di­rect Precept of our Church. Let them likewise tell, whether this be an absolute command, or Conditional only. That is, whether the Minister having proceeded so far in that Service, is absolutely bound to Preach, or read an Homily (which I know none will po­sitively affirm) or only obliged when there is a Sermon or Homily, here to have it. Which I doubt not but will generally be granted to be the very truth.

From hence then in proportionable manner I inferr, that return­ing to the Lords Table is necessarily imposed upon the Minister, when his Ministration required that he should be there, and condi­tionally, not when it did not require him. And if it be yet urged, that he is always required, this is to beg the question, which could not be gained by Argument: And to fall into this circle he must needs be there because he must return thither, and he must return thither because he was there. And thus have I done with my first proof of my Proposition, viz. That the primary intention of our Church was (imitating ancient Churches) that the entire Service should be said in one place, and consequently that she never intended one part of the Communion Service should be Executed in the Desk, and ano­ther [Page 10] at the Lords Table, but that remitting of its principal design in suffering the first Service, as now it is called, to be in the Desk, it is Probable that she yielded, that so much of the second might be there used, as related not necessarily to Consecration. And so of the two main Reasons arguing a necessity of the Missa Sicca to be out of the Desk.

A Second Reason I make to be from not the Casual, but the Pur­posed Uncertainty of the Forementioned Rubricks diversly under­stood by divers Men. That there is no such Convincing clearness in them, as is pretended, I shew from a passage I learned from one of Arch-Bishop Juxons's Chaplains upon the sight of the last Reforma­tion made of our Liturgie under this King: Who observing the Ru­bricks to Stand in that doubtful manner, as before, in the New Edi­tion, where no Precept is given to minister out of the Time of the Lords Supper, and yet order taken how he that ministers shall stand and return, was much offended with the Bishop of London, Dr. Sheldon for not taking care of Rendring things more plain: but which way he desired more Perspicuity, I cannot tell, that this, whether by determin­ing for constant Ministration at the Communion-Table, even where, and when no Communion was, I cannot say, or whether not.

A Third Reason I take from the Apparent, and Indubitable Tenet of the Church of England, which is, That all Sacred and Publick Wor­ship of God be Intelligibly performed before the Common People, and more especially the Scriptures then Rehearsed. This I could shew, if need Required, from the judgment of some of our Gravest, and Learned'st Divines delivered to me upon this occasion, Instanc­ing to them in this Inconvenience of the People not being able to hear, and much less to understand that which a man of Competent Voice Saith at the Altar, keeping their Seats in the Church, which hath more than one Alley, or Ile. You know mine hath three Alleys, and when I constantly used Ministration in the Chancel (which you know is none of the least) I have been assured by some most affect­ed to the Church-Service, that they could hear nothing of what I said in the Chancel: And yet I am confident there are more Voices weaker, and lower than mine was, than lowder. Now what Apo­logy can be made for such unknown Tongue to them that hear it not, which may not be made for a Tongue absolutely unknown, which is heard? I know none. I know in the Greek Liturgies of­ten occur in their Rubricks [...], and [...], i. e. Lowly and Lowdly: But their Low Voice is there only appointed when they speak not to the People, but apply themselves directly and e­specially [Page 11] to God, as in actual Consecration. And the Author of the Compilatio Chronologica, at the Year 484. amongst the German Histori­ans hath these words, Tres Causae ob quas sub silentio pronunciat Ca­non Missae: 1 Quia Deo loquitur. 2 Taedium crearet Populo & Sacer­doti. 3. Ne vilescant Verba.

The like causes may you find in Biel Lect. 15. or the Mass and yet more fully in Vicecomes Vol. 3. Lib. 3. Cap. 23. which notwith­standing the Church of England never purposely hideth from the People any part of the Service, tho by accident all may not be ca­pable of what is said openly: But looks upon it as a Corruption befalling the Worship of God in Tract of time: Ancienter Days allowing Explicite and Audible Pronunciation of those things which after-Ages made too Mystical to be made Common: As you may find well Proved by Spalatensis Reipub. Ecclesiast. Lib. 5. Ch. 6. Num. 11. And Photius Nomocanon. Tit. 3. Cap. 1. proves the same out of the 5 Canon of Laodicea, and 5 Basil, and the Code. And there­fore much more doth our Church require such Audible Ministrations. Which if she does, how she can require such a Ministration, as should neither be understood, nor so much as heard, Judge you.

Two things I am very Sensible may be here Retorted, one whereof is mentioned by Mr. H. First, That it may so fall out that a Man cannot be heard in the Desk, and so another manner of care ought to be taken against this Inconvenience as well as that. I answer, This is Possible, and doth divers times happen: But when the Church hath taken all Ordinary care to prevent an Inconvenience, and yet cannot, there is no more to be Expected from her, but such rare Inconveniences must be suffered, to prevent Multiplicity of Remedies, which like the Frequentation of Physick to obviate eve­ry little Indisposition in the Body Natural, would prove worse than the Disease. For as Plato was wont to say, To multiply Laws upon every light occasion seeming useful, is to cut off Hydra's Head, in place of which many will suddainly Spring up. Which by the way were to be wished would be duly considered by our States-men, who presently finding the Subject in the least Incommoded, must make a Law to cut off that Grievance, not foreseeing greater Evils ready to break out upon that Law. But to return, The Case is much different in the Service at the Lords Table, and in the Desk, when as the first by many is never heard, and the Second sometimes not heard by some few.

Another Objection may be, That as for the better hearing the for­mer [Page 12] Part of the Com. Service was brought into the Desk, so by the like Reason ought the other Consecrating Part be there also fixed. To which my reply is that, First, this by the Rubrick of that Office was, and is left to the Discretion of the Ordinary, who hath Power to bring the Com. Table into the Church, I suppose, when he Sees the Chancel uncapable of so great a Company as is to Communicate Ordinarly. Next I Answer, That there is a great Dis­parity in the Cases. For when People actually Communicate, they are not only Permitted, but invited to leave their Remoter Places, and Humbly to Present themselves in the Chancel at a Com­petent distance, so that they may heighten their Meditation by be­holding, and Inflame their Devotions more fully, by hearing the Liturgist Officiate: But in the first Part this is not Permitted, nor would be liked.

Will you Please to hear the Judgment of Martyn Bucer in his first Chapter of his Censure of the English Service concerning this Point? It is very Harsh, for one that was much more Gentle then his Fellow Reformers of that time: His Words are these, Ʋt enim chorus sit tam procul sejunctus a reliquo Templo, & in eo tantum Sacra represententur, quae tamen ad omnem pertinent Populum, Clerumque hoc Antichristianum est. I English nothing to you: For you know this to be severe. And little less is that of Merick Causabon Son of Isaac, and Late Prebend of Canterbury in his Treatise of Preaching Pag. 21. If I mistake not, Speaking thus, However this Occasion being giv­en me, I cannot but profess my Great Dislike, that the Service, and Sermon should be Parted any where, the one, in one Place, and the other in another, if it may possibly be avoided. Especially at such a distance, as it is here with us in the Cathedral, and Metropoliti­cal Church of Christ in Canterbury. I Conceive it one Reason, that so few are acquainted, and by Consequent, not more in Love with the Service. I leave this to Consideration.

But I gather from St. Aug. words in his first Book Contra Epistolam Permeniani, Ch. 7. That tho the Priest minister'd in the Chancel, yet the People both heard and understood, and said Amen to the Pray­ers, as these words Testifie, Populus autem, cujus ille Sacerdos est, ad­huc foris gemit: Nam cum Episcopus solus intus est, Populus & orat cum illo, & quasi subscribens ad ejus Verba, Respondet Amen. This being within of the Bishop, and this foris, or without, of the People, who answered Amen to his Prayers, was much different from our Church and Chancel. For indeed they seem to be divided not much [Page 13] otherwise than that Place within the Rails from the rest of the Chancel; or as myself have seen in some Greek Churches, as a Skreen with two Doors divides one Part of an Hall from another, which hindered not the People from partaking of what was there with­in done by the Bishop or Priest. But when Zeal toward the most Sacred Place, (as they judged that, wherein the Service of God was specially performed) caused men to build Ample Chancels distinct from the Body of the Church (to Speak the Plain truth) they fell into a Pious Errour, and brought great Inconvenience in­to the Publick Service of God in the Judgment of all those, who look upon unknown, or unheard of Worship; as contrary to true Christian Communion. Of the Number of which seeing our Church hath ever Professed it self, how can we fairly suppose she should contradict her own Doctrine by her Practice. And thus far of my Second Proposition.

My third and last Proposition (for 'tis more than time that this Discourse were ended) is this. That upon Supposition that once it was the real Intention of our Church, that no Part of the Se­cond Service, even when there was no Communion, should be said any where but at the Communion-Table, Custom hath both weakned that Law, and Interpreted the meaning of the Church so far otherwise, that it cannot deserve that odious Name of Con­venticling to Read one Part of it in the Desk. This I purposely set down thus, and directly oppose to the main Column of this Gentle­mans Discourse built on the contrary, which he farther Buttresseth, (as I may so Speak) with many Inferior Reasons: As the un­reasonableness of Custom to overthrow a Law. For tho saith he well, Pag. 6. a Custom not prevented by a Law, maketh a Law, yet where a Law goeth before inconsistent with the Custom, Cu­stom cannot, and ought not to Null that Law, being not orderly Rescinded.

Again, (I give his meaning, not sticking to his words) it is a Grievous Affront to the Kings Majesty, and Authority, thus by Custom to be Baffled. It is a Great Breach upon the Churches Au­thority to have her Canons and Orders thus slighted. It is an In­tolerable Presumption for Private Priests of their own Heads without good Authority, to judge of what is Convenient or Incon­venient, what is Decent, or Indecent, what Superstitious, or not Superstitious, contrary to Publick Decrees, and I may add, it is the Pest, and Ruin of this, and all other Established Churches, the Pre­tended [Page 14] Charitable Complyance, with pretended tender Consciences of Private Men against the Conscience, and maturer Counsels of Su­periours. All this I acknowledge to be very important, and deserv­ing due Consideration: Which I shall endeavour to give to it, by opening briefly the Power, and Nature of Custom, not only when there is no Written Law to the contrary, but where there is. And this I shall do by running through, and giving Instances in all sorts of Laws, as Civil, Common Law with us; Canon Law with other Churches as well as ours, in all which it will appear what Great Influence and Efficacy Custom hath over them; and so, no such new, notorious, or Intolerable thing is said or committed in Cu­stom here predominating over the General Rule here supposed by that worthy Gentleman.

I shall begin with the Judgment of that Learned Dr. Eaden, late Master of Trinity-Hall in Cambridge, Inferiour to few of his Time, and none of this Nation in knowledge of the Civil Law, as I am assured by those that knew him better than I did. It being de­manded of him, what he thought of Custom contrary to an unre­pealed Law, or Statute of a Colledge specially? He answered, Cu­stom doth prevail in such Cases. And being urged a Second time, and demanded, But what if there be such a Law made that saith, by way of Anticipation of abuse of Custom, that no Custom which afterward may possibly arise shall make void such a Law, shall Custom prevail also against such a Law? Yes, (answered he) Custom is to be observed against such a Law also.

And that he spake not without Book (as they say) or without good Reason, I shall shew, beginning with the Civil Law. But first of all must we agree what Custom is. Consuetudo, (saith Isidore Hispalensis, Lib. 5. C. 3.) est jus moribus institutum. Now it is not so well agreed upon by the Learned Civillians what Continua­tion of Practice maketh a Lawful Custom. Some Lawyers, and Laws, (as I could Instance in, were it seasonable) make twenty Years a Competent time to produce, and denominate a Custom; others Assign an Hundred Years, others forty. Now choose which we will of these three, there will be good Ground to found a Custom of not necessary Observation of the Service at the Communion Table, out of Communion. For tho (as Mr. Hooker said, quoted by Mr. H.) the said Service was commonly there used, when there was no Communion; yet it is much more certain that more Common and General it was to omit it, and that for these Hundred Years. [Page 15] And besides Experience, I think the Argument of the quarrelsome Sectaries, do prove so much, who would not have dared (tho they be daring enough) to have called it an Innovation, had it been in the Memory of Man Generally observed.

But in truth, it was their wonted, and affected Ignorance, which so Venturously and Mischievously transports them oftentimes to call it an Innovation, when they could not be so stupid many of them that had ever seen and been present at a Cathedral, but they must ac­knowledge it to be almost as Ancient as the Reformation, than which they are wont to desire nothing Ancienter. Here therefore we may bring in the finer Discourses of such who will distinguish Use from Custom. For Use may that be called, that which is not altogether laid aside: But Custom that which is most Common and Prevalent: And such undoubtedly is this Omission we speak of. Some add a third kind, which they call Prescription, but Vasquez in 1. 2. Thomae, tells them well, they are mistaken: For as much as Prescription differs from Custom as to Degrees, or as a Child from a Man. One or two Acts or Examples the Lawyers will allow for a Sufficient Prescription: but they cannot alledge them to be a Cu­stom: Custom being that which for Multitude, and Extent exceeds all other Rules.

Now for the force of Custom, because some are of opinion it dependeth upon Authority to be of Weight, I shall give you Vas­quez his Judgment in Thom. 1, 2, Tom. 2. Disput. 177. Cap. 6. § 52. Ego quidem, saith he, Existimo, si loquamur secundum jus Canonicum & Civile Imperatorum, Consuetudinem posse introduci absque ullo actu Spe­ciali, solo Extrajudiciali usu. Nam in jure Canonico nullus textus est, in quo contrarium statuatur; In Civili verò Imperatorio est lex quae exigat duas Sententias: That is, as I understand him, which required two Judgments, one taken from the Law written, another from the Law unwritten, or Custom. And he that shall advise with Tho­mas, 1. 2. Quaest. 79. a. 3. and his Retinue of Commentators shall find these three Properties Generally ascribed to Custom. 1. That it abrogates and takes away the Law, which I confess I assent not to, giving my Reasons hereafter, because it only voids the Present Obligation to it, and not destroys it absolutely. 2. It Interprets Law. This I hold generally true. 3. It brings in a New Law, i. e. there being no Law Antecedent opposing such a Law: For in such Cases it only lays the Ancient Law asleep, not kills it.

I might enlarge more upon this Preparatory Discourse to Cu­stom: But I come to the thing it self, and the effects of it. First in Civil Law, to make void (as even now I said) the Letter of a Law Prescribing otherwise: So that if besides General Obliga­tion of Obedience to Lawful Governours, men for the firmer Ra­tification of it, and Observation, shall take an Oath to keep it, his Oath according to great Interpreters, doth not necessarily, and fully bind according to the Literal sense, when a General and long Cu­stom prevaileth to the contrary. I here to prove this, alledge the words of Gerson Chancellour once of Paris, Coroll. 13. Pag. 6. De vitâ Spirituali; and the rather, because Mr. H. hath plainly said, that such Consuetudo is no other than Corruptela, which is di­rectly confronted by these words of Grave Gerson. Omnis Lex humana est vel Positiva, in eo quòd non necessario participat cum Naturali, & Di­vina. Haec autem Abrogatio fit vel per Consuetudinem oppositam juxta quod dicunt Juristae, & verum est, quod Consuetudo est optima Legum In­terpres. Nec unquam dicenda est Corruptela, nisi ubi Legem Divinam aut Naturalem laedere convincitur. And by and by he adds. Fit autem Abrogatio per Expressam, aut Interpretativam Revocationem fac­tam ab illo, qui condendi habuit Potestatem: fit denique Abrogatio Cau­sa manifestae Damnationis, si Lex illa Servetur.

Here is matter offered of a Refutation of Mr. Harts Suppositi­on, that such a Custom, as we now contend for, would be both a great Corruption, and Abrogation of the Law supposed to en­joyn this Practice. For this would be only an Interpretation of the mind of the Legislatour in the like Juncture of Weighty Cir­cumstances. Again, it would not be such affront to the Kings and Churches Authority, they both looking on and permitting this Custom enervating their Law. And besides, where a Law is Abro­gated properly, there goeth before such a Recision, and Repeal, which deny Power Ordinary to the Authors of that Law, or Con­stitution, that it no more can be of force without a New Act E­stablishing it: but where long Custom hath voided it for a time, it remains still with the Dispensers of the Laws, whether Civil, or Eccle­siastical, to Revive and Reinforce it, without any new Solemn, and formal Enacting of a new one.

This farther appeareth from Statutes of Universities, Colledges in Universities, and Collegiate Churches: The Members of which oblige themselves to a due Observation of them, and you see what great Latitude is suffered by vertue of Custom subtilly, and Insensibly [Page 17] creeping upon such Foundations, whereby as the Ivy eats out the Heart and Life of the Timber-Tree in time, the force of them is almost lost. Of this the same Gerson in the same Place Lectur. 4. thus taketh notice, Nobis praeterea dicendum videtur multae sunt Institutiones, ad quarum Observationes videntur Omnes se Quotidianis Juramentis ob­stringere, quas tamen observare non tenentur. Non quod Perjurium sit licitum, sed quod talia Juramenta semper sunt intelligenda civiliter. Horum Ex­empla sumere possumus in praeclara Ʋniversitate Parisiensi.

Now what he means by Civil sense of Precepts of our Superi­ours and Obedience of Inferiours, he intimateth to us in his Trea­tise De Perfectione Cordis; that Obedience Sworn to our Rulers, extends not simply to all things, but only such as their Power ex­tendeth unto; And in the former Treatise again our Obedience he makes fourfold. 1. Of Necessity 2. Of Congruity. 3. of Coun­sel. 4. Of Perfection. So that in things not of Necessity, a low­er Obligation tyeth us. Bernard. de Praecept. et Dispens. c. 16. wisely considers two things in taking upon a Man Obligation to Su­periours, the Praeceptum against Sin, and the Remedy Provided a­gainst a Transgression of our Superiours Laws, and concludeth, Solum igitur existimem fregisse votum, violasse propositum, praevaricasse pactum, qui & praeceptum contempserit & remedium.

Here we have the true and genuine Character of a Phanatick: For to violate a Law, so as to contemn it, and the Propounder of it, is to fall into Notorious Disobedience, and Contumacie odious to God, and destructive to all Government: And having so done, to refuse the Remedy of Admonition, and Submission, is to be Per­fect in modern Impiety: From which no Priest being Censured for not Ministring at the Altar according as our Author requires, and still obstinately refusing, preferring his own sense, and the will and good liking of the Common Sort, before Governours, can well ex­cuse himself: But while the Case is left at large, and notice taken of such Omission without Censure, the Case is altered.

And I will now make this farther good from the Common-Law, from which Custom hath given sufficient Dispensation, the Law re­maining in it's Native force unrepealed, and unabrogated: For which I shall follow the Judgement of that Learned Judge, Chan­cellour Elsmere, in his famous Case of the Postnati, Page 48, 49, 50. Where he giveth divers Instances of change of Laws, and con­trary Determinations of Judges to Ancient Precedents and Prescrip­tions, standing there unrepealed. Formerly, saith he, and shews [Page 18] one Present, Aiding, Comforting, and Assisting a Murther was tak­en to be no Principal, but an Accessory; but now is judged Princi­pal. Again, the Remainder in Tall anciently could not have an Acti­on of Wast against a Tenant for Life: But afterwards he might. Anciently the Vicar could not have an Action against the Parson: But now he may, &c. And how came this Change but by Custom? And how came this Custom, but by one or two at first varying from the Ancient Rule? And yet the Kings Authority was not supposed hereby to be invaded or affronted, by which Ancient Laws Sub­sisted; which Mr. H. with great Zeal pretends must hereby won­derfully suffer, if so be such a Change should be made in Ecclesiasti­cal Laws.

The Reason why the King and Church lose nothing hereby, is, because as Judges are Delegates of the King in Civil Matters, and being Subordinate to him, what they do passes as done by himself, he not entring his dissent: So the Bishops, so far as concerns the Civil Sanction of Laws Ecclesiastical, are deputed by the King to preserve, and execute such Laws, which if they do not, but by Con­hivence give way to a contrary Custom, in time proving a Law, they are, if not Authors of, accessory to their own affronts, and swervers from the old Letter, thus by Practice interpreted, and in great Measure justified. A more apparent Instance of Yesterday (as I may say) may be given in Custom opposing and nulling the first Act of Parliament for Burying in Woollen, until it was Reinforced by a more Strict and Penal one. And another more Pregnant Instance we have in the Act requiring that all Waggons, and Travailing Carts should have Broad Wheels, which never took Place, but being Generally neglected, that Act lost it's end, and Vi­gour without repeal.

And now, to touch upon the Canon-Law, and it's Obligations a­gainst inveterate Custom, I shall set down what I find in Biell, Lection the 3 on the Canon of the Mass, out of Gerson de Contract. Proposit. 16. For I Remember not the Passage my self in Gerson, and am in too great hast at present to search for it. It is this. Ʋbi Papa, vel Ecclesia, vel Legislator sit, vel quando Constitutiones non pub­licantur, sed dantur oblivioni, vel non approbantur moribus Ʋtentium (Note well this) sed passim declinant in oppositum, tum Constitutiones illae desinunt habere vim Obligationis, tanquam abolitae per non Ʋsum, vel Consuetudinem oppositam, quae est optima Positivarum Legum Interpres. And it is well known to indifferently Learned in the Doctrine of [Page 19] Councils, and their Decrees, that there is a strong Party in the Ro­man Church, tho not the greatest, that say, Acts of General Coun­sels oblige not until they be received: Yea, that a Council is then General, when it is received, and not otherwise, which tho it makes for my present purpose, is denied by me, as very absurd to affirm.

Yet this is most certain, (and I hope no man of Common insight into Ecclesiastical Story will deny so far as to put any Body to the expence of so much Labour as to prove) that Innumerable Canons, and some called Apostolical, are totally laid aside by a contrary Custom growing upon them, and oppressing them. Let us only reflect upon things done at home, and concerning the keeping of Lent (the time I now write this) is there any more express Law, or Canon for other things, than for this? And yet do not you see what a Gross neglect there is in Observing it? And how few make a Conscience, as they ought, of it? Doth not the Law stand as en­tire and vallid, as ever, and yet Custom prevaileth to the con­trary? Are all Phanaticks that omit it? For my Part, if this Gen­tleman shall say so, I will not oppose him, especially if Con­tempt and Contumacy be found in the Case, or Pishing, and Pushing at the Authority of the Church, which alone suffices to Characterize a Sectary.

And the like have I already said, and shall say once more, con­cerning not Officiating at the Lords Table accompanied with con­tempt and Contumacy, that it is Schismatical, and Phanatical. But I deny all Serving of God in Publick not exactly agreeing with the Liturgy, to be Conventicling, which this Gentleman affirms Pag. 7. but cannot prove. But then he demands Pag. 8. When a Dissen­ter, and what doing; how much, or how little differing he be­comes a Nonconformist? Certainly Nonconformist being taken ac­cording to the Etymology of the word, the least difference in Practice makes a Nonconformist. But Nonconformist is of a more large and Civil sense, rather than Grammatical in Common use. For the two Parts that make an Heretick, constitute a Schismatick too, and Nonconformist. Not every light Errour, but one of Moment, and not every one of Moment, but such as is stoutly, and boldly defended makes an Heretick, and Nonconformist in Ceremonials.

It is farther objected, That to approve the Multitudes forwardness, and Pretence of tender Consciences against Authority, is to endan­ger the whole State of the Church. I grant it to be most true, that [Page 20] nothing can be more Pernicious to Ecclesiastical Order, Unity, or Charity, than Charity pretended to Private and Ignorant men's Con­sciences against the wiser, and Weightier Determinations of our Governours: Especially we considering First, that no Just Cause is given for to offend Conscience; and Secondly, that we must take their own bare word, that their Consciences are really offended as is pretended, and that not rather some other wicked Passions, and Peevish, Envious, Ambitious Humour to be valued, and give Laws to their betters, wearing the Clothes of Conscience, puts them upon such Perverse Disputings, and Refractoriness.

To prevent which, it seems to concern Governours to judge fully of the End and Use, as well as Form of Laws, and especially of the Form it self, and accordingly to interpret, and enjoyn what doth ap­pear to be Legal, and Canonical, without suffering Custom insen­sibly, but in Tract of time so strongly to encroach upon them, that both their Authority, and the things Commanded should become doubtful. And that Variation and Exemption from Rule may pro­ceed rather from their Particular Dispensation, than the choice or Liberty of him that is Singular.

Now what those Cases are, which may require an Equitable, or Favourable sense, rather than Literal, or Rigorous, some may presume to assign, and I for my Part could alledge, not only the un­profitableness, in great Part, not absolute (for I make no doubt but considerable Benefit doth redound to the Deaf, and not actually hearing, being present dutifully at the Ministration of Gods Offi­cer in Publick Prayers) of such as are at Church at the time of the Communion Service at the Altar: But mine own Infirmity, which you know, hath of late Years appeared too Notorious: But I hold it more prudent to refer things of this nature to be judged and re­solved in a Synod, which God in his due time send for the Refor­mation of such Errours, Obliquities, and Defects, as have and must necessarily creep into a Church without more Frequent, General, and Publick Review of the Rules of Discipline, than hath of late Years been allowed. And so I conclude, professing all readiness to such Re­solutions above mine own Understanding, not exceeding my Bodi­ly Power also.