But because what I have formerly said touching the uniting of the Ecclesiasticall and Temporall Courts may seem strange to many I desire not to bee mistaken as if I perswaded any innovation or change of setled lawes and Courts of Iustice Which would be a thing of dangerous consequence that no wise man will advise but leave all to the wisdome of superiours to whom properly it belongs Only I will adde a few lines touching the auncient forme and manner of government in the Empire after that the Emperours became Christians from whom 't is likely the example was taken both among us and in other kingdomes XXV Touching the division of the Courts temporall from the spirituall though Will: the Conquerour began the separation with us in England yet there was the like done long before even by Constantine the great the first Christian Emperour who first gave leave to the Christian Bishops to meet in Councells and to make Canons to governe the Church Canones generalium Conciliorum ut Isidorus ait lib. 6. Etym. cap. 16. à temporibus Constantini coeperunt Inpraecedentibus namque annis persecutione fervente docendarum plebium minimè dabatur facult as Inde Christianit as in diversas haereses scissaest quia non er at licentia Episcopis in unū conveniendi nisi tempore supradicti Imperatoris Although ever since the Apostles held their first Councell in Ierusalem Act. 15. where they made certaine Canons for the pacification of the Church of Antioch there were also some Provinciall Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the Churches did require As may bee seene in the first Tome of the Councells before the great Nicene Councell was assembled by Constantine Who being the first Christian Emperour did greatly labour to setle and advance the dignity of Episcopall government And because he knew well that superiority in the Church without power and jurisdiction was to litle purpose Therefore the good Emperour in his Christian zeale enacted Et si praecipuum Pontificis seu Episcopi munus est doctrinâ verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in officio retinere possunt superiorit as in quasunt Ecclesiastici absque imperio jurisdictione non sat is habet nervorum authoritatis denique quoniam Ecclesia mater cultrix est Iustitie Ideo Episcopis peculiaris quaedam Iurisdictio Ecclesiasticae civili dignior in personas causas Ecclesiasticas legibus Imp est attributa c. ut jus dicant clericis c. And least the Emperour in his Constitution in these words ut jus dicant clericis should seeme to keep short and restraine the Bishops in their Audience or Consistories to Clergy-men only there followes a praterea in the same title in the Code De Episc. audient not long after this praeterea saith the Emperour there Ius dicunt laicis XXVI And as before the age of Constantine for want of power in the Church and the Assistance of the Christian Magistrate the Bishops could not restrain nor suppresse the many heresies schismes that did arise in those first ages most of which heresies were such as were fit to be beat downe by authority rather then by reason and argument they being so impious insolent and blasphemous so after his time when he had setled the Bishops authority yet there being two courts where did arise many differences and debates between the Bishops and the secular Iudges of that time touching cognisance of some causes Iustinian the Emperour made a law like unto that circumspectè agatis of our King Edward 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novell is thus Si delictum sit Ecclesiasticum egens castigatione vel mulct â Ecclesiasticâ Deo amabiles Episcopi hoc discernant nihil communicantibus clarissimis provincia Iudicibus Neque enim volumus talia negotia scire omnino civiles Judices cum oporteat talia Ecclesiasticè examinari et emendari secundum sacras et divinas regulas quas etiam sequi nostrae non dedignantur leges XXVII And further for the greatnesse of the Bishops authority it will appeare fully if we look upon the lawes as they lye concatenatae in the same title Where it is said of the Bishops Cum sint ordinarij Iudices and againe similes Praefectis Praetorio and further Ordinariè quoque procedunt The linked Texts in that title of the Code as they stand cited doe fully shew the greatnesse of the Bishops Courts and Authority when they are compared and said to be similes Praefectis Praetorio Who were Illustres Iudices and so stiled in the law they being indeed the most supream Iudges in the whole Empire there being but three in that spatious Empire One in Asia Praefectus Praetorio Orientis Another in Europe Praefectus Praetorio Illyrici The third in Africa Praefectus Praetorio legionibus et militiae Africanae These civill Magistrates were respectively Iudges of the Causes which the Emperour had translated from the Empire to the Church which when the Emperour had done and made the Bishops the same Iudges in the Church as the Praefecti Praetorio were in the Empire before it appeares hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their Vicar-generalls whom now we call Chancellours as a learned Civilian observeth who are no upstarts in the world rising out of the Bishops sloath as one though otherwise eloquent and learned mis-called them but had their Originall from the Law it selfe Touching whom I will here say something out of the learned Civilians because commonly their place and Originall is much mistaken by the ignorantly zealous people who doe now abound in the world and thinke nothing lawfull in government unlesse there be expresse text of scripture for it as if no calling government or subordination of Officers in the Church were lawfull but what is expressely and fully set downe in the scriptures and no power or authority left in the hands of Christian Kings and Magistrates to appoint Iudges and Officers for Church discipline as well as for civill Iudicature XXVIII But to returne as the Praefecti Praetorio quia illustres erant et antestabant caeteris dignitatibus ideo habebant Vicarios suos in civilibus causis audiendis et terminandis So were the Bishops then and so are they now Illustres Iudices et antestabant et antestant caeteris dignitatibus in Ecclesia For the Law paralells them in the Church with the chiefe Iudges in the Empire as well in this as in the rest of the parts of their Honour wherewith the Emperour had honoured them and the Law honours them at this day Iustinien's Code hath sundry lawes some of his
of the Apostles should exercise an Authority which the Apostles themselves had nothing to doe with Let us observe the difference of Times and thence gather that this civill Iurisdiction is as expedient and necessary to the Divines of our Time as it was altogether unnecessary and unprofitable to the Apostles Civill Iurisdiction is by the chiefe Magistrate to be conferred on those that are subordinate and according to his lawes to bee administred As long therefore as the Rulers of the earth waged warre against the Truth of the Gospell neither could they assigne nor the Apostles without scandall to Christ and the downefall of Religion have received any Temporall Power from their hands But since Kings and their lawes began to subject themselves to Christ civill Authority by them given to the Ministers of Christ might-have been a great furtherance to the advancement of the Gospell and more happy government of the Church Furthermore the Apostles and Fathers of the primitive Church were from heaven endowed with an extraordinary and miraculous power which did more availe to the confirmation of Christians in Faith and Obedience then any civill Authority But now the government of the Church is in the hands of Ordinary Ministers who being disarmed of that divine and miraculous power are conveniently guarded with this Temporall and Ordinary Iurisdiction Lastly when the Christian Church was in her Infancy Piety was more deepely rooted in the breasts of the Disciples and if they would have resisted the discipline of the Church their rebellious minds were soone quelled by the cruelty of persecution and hourely imminent danger of violent death But now the Christian world wholly possessed and carried away with Pride and Luxury hath so cleane layd aside all respects of Piety and Modesty that all the spirituall power of the Clergy and Church-discipline if not seconded by civill Iurisdiction breeds rather scorne and contempt then amendment in the malitious remorse of this present age Thinke then what rash and incompetent Iudges they are who from the Apostles and their dayes conclude temporall Authority not requisite to our Ordinary Ministers A fourth Argument may be drawne from God's owne Institution and the most ancient practice of the Church God himselfe under the law did annect civill lurisdiction to the office of Priesthood it is therfore no strangething nor against the divine Law that a Church-man should beare sway in temporall affayres Heli Samuel the Macchabee's together with all the high Priests in the old Testament did exercise this kind of Authority but why it continued not so for some hundred yeares after the Gospell is made evident by reasons above alleadged But since Constantine the Great submitted his Imperiall Scepter to Christ you shall in all Ages finde the godly Bishops and Fathers of the Church administring civill Iurisdiction by Religious Emperours to them imparted which if time would serve might be clearly testified out of Ecclesiasticall Histories and Councells and out of the Emperour 's owne lawes but these are so sufficiently knowne to the learned that the citation thereof would prove an unnecessary Trouble Lastly let us out of our adversaries owne grants and confessions prove what they themselves deny They grant the Clergy a Iurisdiction whereby they can cite before their Courts Hereticks Drunkards Adulterers and such like infamous persons admitaccusations against them heare and examine witnesses and give sentence of Excommunication on those that are lawfully convicted If by vertue of spirituall Iurisdiction from Christ received they can doe these things why shall they not by the accession of secular Iurisdiction by the King conferred imprison the same Malefactours or by such like civill punishments bridle their loose incontinencies This Act of Correction is no lesse warrantable in it's owne nature then that of Excommunication both being put in execution by just and legitimate Authority neither doe corporall punishments lesse conduce to the Reformation of delinquents and the Churches good then those meerly spirituall Therefore by the allowance of superiour Authority it is no lesse expedient that Clergy-men should inflict one kinde of chastisement rather then another In a word learned Mr Calvin doth grant that what controversies soever happened between Christians to avoyd strife and division they were wont to referre them to their Bishops by their judgement to be decided And St Augustine tells us that he dayly spent some time in secular affayres either by his sentence determining and setling them or cutting them off by his interposition Furthermore he records that St Paul employed Church-men in such troublesome matters If private Christians doe lawfully commit their civill controversies to the arbitrement of Bishops surely Christian Kings may to the same Bishops lawfully commit the Iudgement of the like causes if at the request of private men it bee not unlawfull for Church-men to intermeddle with secular businesses it cannot bee unlawfull to doe the same by the appointment of the King For as the matter stands hee doth no left interest himselfe in State-affayres who decides controversies as an Elect Arbitratour then he who decides the same as a Iudge ordained by the Prince Let us conclude that ambitiously so hunt after or with prejudice to the function of Priesthood to exercise civill jurisdiction is a proud and unlawfull act But to accept of civill Iurisdiction from the hand of a King and to administer the same to the better establishing of the Peace and Discipline of the Church is an act lawfull and praise-worthy most agreeable to the ancient practise of the Church and no wayes repugnant to the divine Scriptures FINIS Lambard p. 1. Concil. pag. 186. Lambard p. 57. Concil. p. 402. Concil. pag. 423. Concil. pag. 127. Bed lib. 2 cap. 5. Concil. pag. 206. LL. Ed. Confess cap. 31. Decanus Episcopi reliquas decem partes habeat LL. AEthelst pag. 406. Epist ad Regen Tum in vita tum in funere Concil. Haupam pag. 515. LL. Ed. Conf. cap. 3. LL. Guliel in prooem. 1. Sermon 37. H. 8. cap. 16. pag. 42. pag. 43. pag. 44. Page 309 Page 45. Vers. 3 4. Concil. 402. De Rom. Pontif. l. 1. cap. 5. Pag. 29. 1. Chron. 26. 29. Levit. 13. Num. 5. Deut. 21. 19. Deut. 21. Deut. 17. 8. 2. Chron. 19. Num. 11. 16. Antiquit. lib. 4. cap 8. 2. Sam. 6. 1. Chron. 13. 12. Selden not ad Eadmer p. 166. Proeem LL. Guil. 1. Glossar p. 315 Lambard p. 80. Con. p. 377. Concil p. 568. cap. 17. Anno 1164. Vid. Selden Dist. 15. can. 1. Quae fuit plenaria Conciliorum forma Novel 83. cap. 10. Mat. 18. 18. 1. Cor. 5. 4. 2. Thess 3. 14. Argum. 1. 2. Cor. 10. 4 5 6. Act. 12. 23. Apoc. 2. 1. Argum. 2. 1. Pet. 2. 13. 14. 2. Tim. 3. 4. Exh. 2. c. 6. 1. Tim. 2. 2. Rom. 13 3. 4. Argum. 3. Argum. 4. Argum. 5. Calvin Inft. 4. 10. 11. De opere Monach 29.
EPISCOPALL INHERITANCE OR A REPLY To the Humble EXAMINATION of a Printed ABSTRACT OF THE ANSWERS TO NINE REASONS OF THE HOVSE OF COMMONS Against the Votes of BISHOPS IN PARLIAMENT ALSO A Determination of the late Learned and Reverend BISHOP of SARUM Englished DEUT. 32. 7. Remember the dayes of Old consider the yeares of many Generations of Generation and Generation aske thy Father and he will show thee thy Elders and they will tell thee OXFORD Printed by Leonard Lichfield Anno 1641. To the READER IN the Examiners answer there is littlemateriall if once the principall doubt bee cleared whether Bishops had aunciently votes in Parliaments and were Barons or that which is equall or superiour unto Barons being accounted Thanes in the times of the Saxons before the Conquest which I hope is so fully cleared in thisfollowing discourse as there will be little question remaining Though Parliaments began as our Histories shew long after the Conquest in this manner as now they are held yet they had Assemblies Gemotts of the Estates and principall Nobility whereof the Bishops and Clergy were alwayes an eminent party according to the lawes and custome of those times and eqnivalent in authorityto our Parliament They hadseverall Gemotts as the first was Wittena-gemot idem apud Anglo-Saxones fuit quod apud nos hodie Parliamentnm parumque à Folemoto differebat nisi quòd hoc annuum esset è certis plerunque Causis illud ex arduis contingentibus legum condendarum gratia ad arbitrium Principis indictum In Folemoto semel quotannis sub initio Calendarum Maij tanquam in annuo Parliamento convenere Regni principes tam Episcopi quam Magistratus liberique homines Jurantur laici omnes coram Episcopis in mutuum foedus in fidelitatem Regis in jura Regni conservanda Consulitur de communi salute de pace de bello de utilitate publica promovenda c. Scire-gemot si pluries opus non esset bis solummodo in anno indicebatur aderat provinciae Comes aderat Episcopus aderant Magnates omnes Comitatenses Episcopus jura divina enuntiabat vindicabat Comes secularia alter alteri auxilio De Causis hîc cognitum est tam criminalibus quà m civilibus tam Ecclesiasticis quà m Laicis sed jurisdictiones postea separavit Gulielmus primus c. many other Gemots and meetings they had but in all these publique Gemots the Clergy were principall members as appeares by the lawes of King Edgar cap. 5. Gemottis adsunto loci Episcopus Aldermannus hoc est Comes doceatque alter jus divinum alter seculare Thus the learned Glossary sheweth out of whom it was necessary to shew the severall assemblies then in use that wee would not contend about the French word Parliament which came in use about the time of King Henry 3. but whatsoever their Assemblies were the Bishops were alwayes principall Members thereof and though once in 25. Edward 1. there is mention of a Parliament at St Edmundsbury where the Clergy were excluded for denying of money which they refused to grant by reason of a prohibition from Pope Boniface in regard of many Levies lately raised upon the state Ecclesiasticall As of later times there was a Parliament once held without Lawyers in the 6. of Henry 4. at Coventry as both our histories doe testify and also the Kings writ directed to the Sheriffe whereof the words are Nolumus autem quòd tu seu aliquis alius Vicecomes Regni nostri praedicti aut Apprenticius aut alius homo ad legem aliqualiter sit electus Unde Parliamentum illud Laicorum dicebatur indoctorum quo jugulum Ecclesiae atrociùs petebatur as a learned Authour saith Yet I hope notwithstanding the inconsiderate zeale of this Examiner our Histories shall never bee blemished with such a reproach as to report the losse or defect in Parliament of either learned Clergy or Lawyers to direct and assist in whatsoever matters are proper to their faculties and the publique welfare of the Kingdome ERRATA PAge 4. Margent for Haupan read Eanham p. 21. l. 27. for not r. now p. 23. l. 6. for sleighted r. setled p. 27. l. 3. for Emperour r. Empereur p. 29. l. 27. for Rawlie r. Ralegh p. 33. l. 29. for Aldermann r. Aldermannus p. 38. l. 2 for sequentur r. sequerentur A REPLY to the Humble EXAMINATION 1. THAT the BISHOPS and principall Clergy were alwayes of great authority in our Common-wealth especially for making of lawes and constitutions of all kinds is manifest by all the lawes themselves of the Saxon Kings for the first 500. yeares before the Conquest wherein they first testify that the lawes were made by the consent suffrage and approbation of their Bishops whom they doe mention So in the beginning of the lawes of King Ina Ego Ine Dei gratiâ West Saxonum Rex exbortatione doctrinâ Cenredes patris mei Heddes Episcopi mei Erchenwoldes Episcopi mei omnium Aldermannorum meorum Seniorum Constitui so in the beginning of the lawes of King AEthelstan Ego Adelstanus Rex consilio Wlfelmi Archiepiscopi mei et aliorum Episcoporum meorum mando praepositis meisomnibus Likewise in the lawes of King Edmund Edmundus Rex congregavit magnam synodum Dei ordinis seculi apud London civitatem in sancto paschae solenni cui interfuit Odo Wulstanus Archiepiscopi alij plures Episcopi The same appeares by the subscriptions to the lawes by the Bishops and principall Clergy of their severall times which is so frequently to be observed in the first Tome of our English Councells that I will forbeare particulars II. Likewise for their dignity order and condition the Clergy were reckoned and accounted equall with the best as appeares by the lawes of divers Kings and first of the first christian King Ethelbert who in his lawes doth provide in the first place for their rights and priviledges and what satisfaction shall be made for any wrong done to the Church or Bishops or Clergy Quicunque res Dei vel Ecclesiae abstulerit duodecimâ componat solutione Episcopires undecimâ solutione Sacerdotis res nonâ solutione Diaconi res sextâ solutione Clerici res trinâ solutione Pax Ecclesiae violata duplici emendetur solutione Volens scilicet tuitionem eis quos quorum doctrinam susceperatpraestare saith Bede These being the first lawes of our first Christian King they ought to be reverenced for their antiquity piety and Christian Iustice in rendring to every man his owne due though now some men talke not only of taking away superfluities but of cutting up both root and branches O tempora O Mores And afterwards about the time of King Withred there were lawes made Quomododamna injuriae sacris ordinibus illa ta sunt compensanda as often elsewhere in the Councells many lawes doe ordaine what satisfaction
the price of his land as other zealous christians then did to pious uses Why hath Satan filled thy heart to lye unto the holy Ghost and to keep back part of the price of the land Whiles it remained was it not thine owne And after it was sold was it not in thine owne power But after he had given it then it was not in his owne power to resume or detaine a part This text deserves well to be considered on before men proceed to arbitrary resumption of things consecrated to pious uses XI Butconcerning the legislative power and votesof Bishops in making lawes to regulate the commonwealth and to preserve peace and justice among all sorts of men there is not to be forgotten an ancient law of king AEthelstan That worthy king in his lawes hath one chapter 11. De officio Episcopi quid pertinet ad officium ejus Episcopo iure pertinet omnem rectitudinem promovere Dei scilicet ac seculi imprimis debet paeem ordinatum Dei instruere quid ei iure sit agendum quid secularibus iudicare debeant Debet enim sedulò pacem concordiam operari cum seculi iudicibus qui rectum velle diligunt incompellationum adlegationem docere ne quis alij perperà magat in jurejurando vel in Ordalio Nec pati debet aliquam circumventionem injusta mensurae vel injusti ponderis sed convenit ut per consilium testimonium eius omne legis scitum et Burgi mensura omne pondus ponderis sit secundum dictionem ejus institutum valde rectum Ne quis proximum suum seducat pro quo decidat in peccatum Et semper debet Christianus providere contra omnia quae praedicta sunt ideo debet se magis de pluribus intromittere ut sciat quomodo grex agat quem ad Dei manum custodire suscepit ne diabolus eum laniet nec malum aliquid superseminet Nunquam erit populo bene consultum nec dignè Deo conservabitur ubi lucrum impium magis falsum diligitur Ideo debent omnes amici Dei quod iniquum est evervare quod justum est elevare non patiut propter falsum pecuniae quaestum se forisfaciant homines erga verè sapientem Deum cui displicet omnis iniustitia Christianis autem omnibus necessarium est ut rectum diligant iniqua condemnent saltem sacris ordinibus evecti iustum semper erigant et prava deponant Hinc debent Episcopi cum seculi Iudicibus interesse iudicijs ne permittant si possint ut illius culp â aliqua pravitatum germina pullulaverint Et sacerdotibus pertinet in suà diocesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alij noceat non potens impotenti non summus infimo non praelatus subditis non dominus hominibus suis vel servis aut liberis molestus existat et secundùm Episcopi dictionem et per suam mensuram convenit ut servi testamentales operentur super omnem Sciram cui praeest Et rectum est ut non sit aliqua mensurabilis virga longior quà m alia sed per Episcopi mensuram omnes institutae sint et exequatae per suam diocesim Et omne pondus constet secundùm dictionem eius et si aliquid controversiarum intersit discernat Episcopus Et uniuscuiusque domini necesse proprium est ut compatiatur et condescendat servis suis sicut indulgentiùs poterit qui à domino Deo empti sunt aeque chari servus et liber et omnes codem praetio redemit et omnes sumus Dei necessariò servi et sic judicabit nobis siout antejudicavimus eis quibus judicium super habuimus in terris It is manifest hereby that by the ancient lawes of this kingdome what trust charge and care is reposed in the Bishops not only to direct matters Ecclesiasticall but also to assist rule and guide temporall affayres to preserve peace Iustice upright dealing just and true administration of severall offices and duties whereby religion is much advanced and adorned when men are honest and upright in their actions contracts bargaines andcivill dealings amongthemselves So that they may not clash or oppose Religion or such Acts as have speciall relation to Religion for all publique Statutes Acts and Constitutions for the most part doe in some degree more or lesse trench upon Religion and the furtherance or hinderance thereof So that they can hardly beduly and rightly enacted and framed without the advise counsell assistance of Bishops the Clergy XII And though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affayres yet that is not absolutely forbidden but in a qualified sense as in the famous councell of Cloveshoe under Cuthbert Arch-Bishop of Canterbury An. 747. Canon 1. negotijs secularibus plus quà m Dei servitijs quod ab sit subditus existit To attend secular affayres more then spirituall and to be wholy imployed and conversant in temporall matters without due regard to the better part but it will not hinder sacred studies nor the diligent preaching of the Gospell that some men at convenient times have a charge and oversight of temporall affayres and the carriage of publique businesse And concerning this see more in Bishop Davenants determinations at Cambridge Quaest. 11. Civilis Iurisdictio jure conceditur personis Ecclesiasticis XIII Thus much might serve for reply to the Examiner especially upon the fift reason which I hold to be the only thing materiall in the whole discourse for the rest will appeare to be needlesse if this be cleared But if he would look back to former times he shall find that our kingdome and government followed the ancient manner of Gods owne people of Israel whose Ceremonies and Ritualls though they now be abolished yetthe generall rules of Iustice Equity Government and Order doe still remaine And as God made the Priesthood then Honourable in the Common-wealth and committed a great part of the government unto them so doubtlessenow underthe Gospell the Priesthood ought to be Honourable and to have a principall part in the ruling and governing of the state and Common-wealth To be a Priest in Israel was to be a chiefe man Levit. 21. 4. and therefore in all their Courts of Iustice the Priests and Levites were chiefe men in authority for deciding of all causes both in the great Court of Sanhedrim at Ierusalem which was a continuation of the 70. Elders appointed by God himselfe Numb. 11. and was answerable in authority to our Parliament and also in the lesser Sanhedrims forthe government of cities in every Tribe there were alwaies two allotted of the Tribe of Levi for assistance as Iosephus sheweth Lib. 4. cap. 8. Antiquit Oppidatim praesint septem viri probatae virtutis etiustitiae cultores Singulis Magistratibus attribuantur duo Ministri
families and also made obnoxious to all lawes suits and impositions without any exemptions or priviledges So that it is but a monasticall and in part a Popish fancy to talke so much of applying their studies and only preaching the Gospell for by many a writ and warrant from severall Courts of Iustice and Constables they shall be hindred and commanded to attend secular and litigious proceedings and answer to all bills of complaint declarations and vexations that shall hinder their preaching and studies more then a voluntary imployment at fit seasons in some publique Office XVII Further it is but a Popish opinion that Regimen Ecclesiasticum est distinctum à politico Which Bellarmine maintaines taking it for granted on both sides only to advance the Papacy above Kings and Princes and to exempt the Clergy from secular authority Calvin affirmes as much Instit. lib. 4. cap. 11. 1. but under correction I take it to bee a great errour though now it is the common Idoll of every mans fancy because that in our kingdome and so perhaps in most others the Courts of Iustice are divided the Civill from the Ecclesiasticall which yet I doe not think was the ancient manner nor to be the best course though things be sleighted as now they are at this present it is not safe to change for in a Commonwealth the Courts of Iustice that have been long setled cannot easily be altered XVIII There is a discourse about Puritans lately published by a Lawyer one Mr Parker wherein he excepts against Calvin and I think not amisse in that he doth according to the Popish grounds maintaine that spirituall jurisdiction differs from temporall because it proposeth not the same ends but severall which by severall meanes may be better compassed But saith he the spirituall Magistrate as I conceive can purpose no other end then which the secular ought to ayme at for either the Prince ought to have no care at all of the honour of God and the good of men and that which is the prime meane of both true Religion or else his ends must be the same which the Prelate aymes at viz to vindicate Religion by removing or correcting scandalous offendours Secondly to preserve the innocent from contagion by the separation of of open offendors Thirdly to prevent further obduration or to procure the amendment of such as have trangressed by wholesome chastisment Thus he and I thinke not much amisse the scope and end of both is the same and as he saith a little before in his discourse Clergy men being as well citizens of the Common-wealth as sonnes of the Church and their cases importing as well perturbance of the state as annoyance to the Church there can be but one head which ought to have command over both and in both It is manifest also that many cases are partly temporall and partly spirituall and that scarce any is so temporall but that it relates in some order to spirituall things or any so spirituall but that it hath some relation to temporall things so that the true subject of Ecclesiasticall and civill Iustice cannot rightly be divided I demand then why should the Courts bee divided which was done first among us by William the Conquerour And why should not there bee Iudges partly spirituall as well as temporall in all Courts saving for the danger of innovation as it was anciently among the Saxons or at least why should not the supreame Court of Iustice which is to give law to all other Courts bee well tempered and mingled with all sorts of men Ecclesiasticall and Civill the wisest and choycest that can be found in the whole state and kingdome Why not Priests and Levites admitted into the number as well as in the Sanhedrim of the Iewish commonwealth which was equall to our Parliament and was instituted by God himselfe And I take it there can be no just exception but that our Christian Commonwealths may most safely follow the generall Rules of policy and government which God ordained among his owne chosen people without any imputation of Iudaisme Now among them some of the Priests and Levites were not only Iudges and Elders in their own cities which were allowed them to the number of 48. in the whole but sate with the Elders of other cities and were Iudges and Officers over Israel Yea many things by Gods law were wholy and chiefly reserved to the knowledge and sentence of the Priests as Leprosy Iealousy Inquisition for murder False witnesse and such like which now among us for most part belong to the commonlaw in which cases the people Elders were to consult the Priests and take direction from them And so Bertram in his treatise de politia Iudaica cap. 9. doth make it manifest prorsus est extra controversiam judices municipales cujusque civitatis ut vocantur seniores suisse chiliarchos centuriones quinquagenarios decuriones tot quot esse poterant in quâque civitate ita ut ex illis Levitae quidam in praefectos assumerentur si modò in ea aliquot erant Levitae sin minùs ex proxima urbe Levitis assignata advocabantur And againe in his cap. 10. David in civili politia dicitur ex Levitis destinâsse Iudices praefectos sexies mille Ex Levitis Iudices praefecti assumpti sunt hac ratione ut primùm essent ex Levitis quidam qui Assessores essent Iudicum ordinariorum municipalium qui seniores dicebantur qui aliquando de plano ut vulgò lequuntur judicarent de rebus levioribus quales erant pecuniariae vel soli vel assumpto uno aliquo ex loci vel urbis senioribus deinde ut essent etiam quidam alij qui judicatas res exequerentur vel certe quod verisimilius est qui assessores erant judicum ordinariorum qui et ipsi de rebus pecuniarijs cognoscerent et judicarent ipsamque rem judicatam exequerentur c. Ex eâdem familiâ adhibiti sunt ad regendam Ecclesiam ad politiam civilem gubernandam ita tamen ut nulla esset utriusque politiae confusio permixtio cap. 11. ad utrumque judicium tam civile quà m Ecclesiasticum adhibiti sunt Levitae in praefectos eodem videlicet modo quo eos ad id muneris designaverat David c. Thus and much more to this purpose Bertram doth often throughout his book deliver his judgement that the Priests and Levites were Iudges in the civill Courts of Iustice and not only in the Ecclesiasticall To this Sigonius agreeth lib. 6 de repub Heb. cap. 7. speaking of the Sanhedrim Inivere hoc Concilium Rex cum principibus populi ac septuaginta senioribus populi Pontifex cum Principibus sacerdotum scribis id est legis doctoribus ut perspicere liquet ex Evangelijs ubi agitur de judicio Christi Voco autē principes populi duodecim principes tribuum qui Regi assidebant
Praepositus aut minister Regis nec aliquis Laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat Iudicium verò in nullum locum portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit And the punishment for disobedience to the Ecclesiasticall Iudges was much alike as formerly was enacted under the Saxon Kings As by King Alured Si quis Dei rectitudines aliquas disforciet reddat Lashlite cum Dacis Witam cum Anglis And the same law is afterwards confirmed and renewed by King Canutus by other Kings whereby it appeares how before the Conquest and likewise after for a long time the authority and jurisdiction of the Church was maintained and upheld by the setled lawes of the Kingdome How they had power in their Courts to excomunicate and further by the helpe of the King and the Sheriffe to proceed against stubborne offendors and such asopposed or contemned their authority so that here is the present practise and law confirmed by many hundred yeares continuance And this is according to that which Iustinian saith of all spirituall causes in the Novell 123. si pro criminal si Ecclesiasticum negotium sit nullam communionem habento civiles Magistratus cum ea disceptatione sed religiosissimi Episcopi negotio finem imponunto If it be an Ecclesiasticall suite let the civill Magistrates have nothing to doe there with that plea but let the Bishops end it Whereby it appeares that Prohibitions from the temporall courts were not then allowable which certainly came not into use till after the Councell of Clarendon under Hen. 2. Wherein the Clergy were inforced to appeare in the temporall Courts one Canon thereof being Clerici accusati de quacunque re summoniti à Iustitiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum et in Curia Ecclesiastica unde videbitur quod ibi sit respondendum Ita quod Regis Iustitiarius mittet in Curiam sanctae Ecclesiae ad videndum quo modo res ibi tractabitur Et si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Councell Matth Paris doth sharply inveigh against them Hancrecognitionem sive recordationem de consuetudinibus et libertatibus iniquis et dignitatibus Deo detestabilibus Archiepiscopi Episcopi et Clerus cum Comitibus Baronibus et proceris juraverunt And as he addeth His itaque gestis potestas laica in res et personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmurantibus Episcopis potius quà m resistentibus usurpabant And this appeareth also by that which Mr Selden relateth in his notes upon Eadmer pag. 168. that long after in Ed. 1. time the Clergy had so many oppositions and hinderances in their proceedings from the temporall Courts that they exhibited a petitionin Parliament wherein they recitethe grant and Constitution of Will 1. allowing them their owne Courts by themselves and specify their complaints particularly which hecalleth Gravamina Ecclesiae Anglicanae and saith they arethose mentioned in the Proeme of Articuli cleri And in this age we have great cause to complaine of Prohibitions but whereof I will say no more now as for the temporall Courts the Conquerour appointed them to follow his Court Royall which custome continued for many yeares till under King Iohn at the instant request of the Nobility it was granted Vt communia placita non sequentur curiam 1. Regis Sed in loco certo tenerentur That the Courts of Iustice for common pleas should not follow the Kings Court Royall but be held in a place certaine as now commonly they are in Westminster Hall Whereas before the Kings appointed one Grand-Lord chiefe Iustice of all England who for his authority and power was a greater Officer both of State and Iustice then any in these last Ages ever since that Office was diminished by King Ed. 1. and most of those great Iustices were Bishops till at length the Pope forbad it XXIIII But the Courts being now divided in the kingdome many hundred yeares the Ancient manner is forgotten and unknowne save only to the learned and the scarres of the Norman Conquest are so overgrowne that few men are sensible what reliques of slavery doe still remaine upon us by changing the order of the Courts the language of the law in great part with other things that I will not now mention But being so setled by the Conqueror and continued by his successours the Temporall Courts in processe of time grew too powerfull for the Ecclesiasticall and by their Injunctions and prohibitions stopt many proceedings especially after the Councell of Clarendon under Hen. 2. Wherein the power of the Clergy was much abated And all Ecclesiasticall Iurisdiction so crushed that it continued lame ever after although the Clergy by appeales to Rome did oftentimes help themselves and much molest their adversaries At length under Hen. 8. upon his breach with the Pope the Ecclesiasticall Iurisdiction was much abridged and restrained in very many particulars and reduced to a narrow compasse becoming much more subject and obnoxious to the Injunctions orders and prohibitions of all the Temporall Courts that now I marvell that any should complaine or envy at their power or greatnes there being no cause of any value or moment but by one order or other isdrawne from them to the Temporall Courts And now at last there want not some that would have all Ecclesiasticall Authority and Iurisdiction either wholy suppressed from the first Court to the last or at least so abated mingled or changed that what forme or force of government shall be left remaining seems very uncertaine But if Presbyteries and such like consistories of the forraigne and new fangled devising were erected there will follow great confusion and disorder to the infinite disturbance of peace and quietnesse in the kingdome by alteration ofso many lawes and customes and of the common law it selfe whereby the kingdome hath been governed so many yeares and setled in peace and all mens estates and lands held in certaine possession For such great and universall changes as will follow upon the dissolution of the Hierarchy and taking away their votes in Parliament and other eminent parts of government will produce such ill events and troublesome distractions as will not be pacified within the compasse of any mans life now in being Which I heartily pray God to prevent and by his good spirit so to direct and blesse the endeavours and counsells of the supreame Court of Iustice now assembled that all our feares and doubts may bee quieted and the voice of peace and truth restored to our dwellings