capacities of government in him the one spirituall the other temporall by both these hee hath supremacie and this supremacie is chiefly exercised in the calling presedencie and dissolving of the great assembly of the three States which high Court is not competently correspondent to both those powers in the King vnlesse the Parliament consist collectiue of spirituall and temporall persons which it hath anciently if the Booke De modo tenendi Parliamenti be authenticall for hee makes the vpper House consist of three States the Kings Majestie the Lords spirituall and temporall and lower of the Knights Ridleys view of Ecclesiasticall Lawes Procurators for the Clergie and the Burgesses which both answer the Kings mixt supremacie So that as he is supremus Iustitiarius totius Angliae in relation to the temporalitie so he is supremus or as Constantine truely entitled himselfe in the Councell of Nice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eusebius in vita lib. 3. in respect of the spiritualty But to returne to my present promise and purpose which was to shew how the actes of supremacie haue their effects in the Ecclesiasticall jurisdiction derived to the Clergie And I am now to shew what effect the power of promulgation of lawes hath which is in consenting confirming and publishing the Ecclesiasticall Lawes which are agreed vpon in Convocation not excluding the advice of the Parliament because the State Ecclesiasticall is not an independant societie but a member of the whole hence it is that they are called the Kings Ecclesiasticall Lawes by which the Clergie is ruled in spirituall causes according to which they exercise their jurisdiction in foro exteriori contentioso hence it is that for this last age the Ecclesiasticall Lawes of this Realme haue so well agreed with the Civill because they passe not without the assent of the supreame governour And it were much to be desired that Christian Princes would not onely permit lawes to be made and giue force to them by their authority but also that they would vouchsafe their personall presence to be Presidents in all assemblies for that end for then they would proceed and conclude to better purpose As Isidorus Pelusiota writes to the Emperour Theodosius the younger to be resident and president in the Councell of Ephesus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that if hee would be pleased to take so much time as to be present there he did not feare that any thing that should passe could be faultie but if he leaue it all to be done by turbulent suffrages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isiodoru◠lus lib. 311. Who can free that Synod from scornfull scoffings his counsell was safe and seasonable because the cause of feare was very probable and eminent For in a Councell where there is a Monarchicall authority a supreame power in one there will be more dispatch in deliberations more expedition in executions than where multitudes of equals sit alone for they will be many of them over-wise and most over-wilfull to agree in one poynt when as every singular person will broach his particular project and propose it as a publick law with resolution to be a recusant to all their lawes if they will not be Protestants to his and so it comes to passe too often that they are forced to yeeld to one another or else no law should passe Hence is that multiplicitie vncertainty confusion contrariety of lawes in some diseased States than which nothing discovers a State to be more desperately declining though they are good in their particulars for they shew the multiplication of ill manners which per accidens begot them and they are likely to make them worse because they being appointed to amend them are disappointed and disabled by their owne crosse contrarieties As in a naturall body over-growne and over-flowne with ill humours If a Philosopher that considers onely a body neither sick nor well giues that which is good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Hippocrates calls it and when he hath done an Emperick come that considers it as sick but he knowes not of what nor the temper of the constitution but boldly and blindly giues one medicine to all for all diseases and at last the judicious Physitian come and consider it as it is and know what to doe hee must first vndoe all the other haue done before hee dare administer that which should first haue beene taken and by this time the body is either past cure or desperate conclusions must be tried to recover it Therefore happy is our State Ecclesiasticall in whose Convocation our supream Soveraign is President so that the Lawes passing with his royall consent are certaine and easie to be obeyed by reason of their rarenesse and paucitie which makes them pertinent distinct and free from confusion And therefore I doe not a little marveile at learned Baronius Baronius Annal Anno. 528. that since hee doth not deny Iustinianus the Emperour the power of making Ecclesiasticall Lawes he should so scrupulously and busily inquire what should moue him to meddle with the making of them when as I doe not doubt but the Clergie then might request him to it This last act of supremacie is to receiue appeales and giue determinate decisions and this hath its effect and is exercised in the Ecclesiasticall Courts And they doe not exercise any power that is not derived from this supremacie either immediately or mediately So that as the lawes they execute are the Kings Ecclesiasticall Lawes so these Courts are the Kings and all the processes and courses approved by his Majesties Lawes Therefore now there is no ground for a praemunire in them though the words of the Statute runne to Rome or else-where for by else-where seemes to be meant the Romish power Babylonem◠Gallicam vt Petrarch epist 123. or Court which was not then at Rome because the Popes seat was then at Avignion in France and not our Bishops consistorie For I beleeue that Statute was made to free them as well from the forraine vsurpation as any other of the King Courts as the pragmaticall sanction of France doth which was of the nature and in imitation of it about the same time by Charles the seventh brother-in-brother-in-law to Edward the third But however it was then meant I am sure it cannot extend to them now vnlesse wee will deny the Kings supremacie over all causes and persons Ecclesiasticall and then they are not the Kings Courts but if we grant the Kings supremacie wee must deny that any of his Courts can incurre a praemunire A prohibition I grant may lawfully lye there because it is safe for the whole State that every jurisdiction should haue its bounds and keep or be kept in them But yet I will not say so in generall but we must admit them with distinction of prohibitions one of Law another of Fact Now that prohibition which is of Law according to the expresse words of the Statute which are commonly large enough
King in Europe hath had for this 400 yeares to vphold his Clergie and conferre favours and honours vpon it our present supreame head of our Civill state hath all that right and more reason to bee as royally indulgent to our present state Ecclesiasticall as none can deny but as he that hath chiefty of power over the whole body of the Common-wealth may rightly and justly favour bestow rewards priviledges and power vpon any publique societie or private person in the same so none will affirme that all that haue supreame power haue the same equalitie of right to endow with priviledges or inrich with rewards because that all doe grant that all Kings haue not Dominion in the same equall altitude and latitude and so cannot so highly advance in priviledges least they surmount their petty prerogatiue nor so largely giue them power and revenewes lest their extention shorten their owne And the grounds of this inequalitie are diverse in handling of which I will neither follow Machivell nor Iunius Brutus because I finde them to runne into two extreames the one granting it to all out of the loosenesse of a wanton wit the other denying it to all being carried by the stream of innumerous particular authorities that because as the other wanted conscience so he wanted experience or rather because Machivell lived when all Princes in Italie claimed and vsurped equall and full power and so writ what they did not what they should doe and Brutus might endeavour to diminish the power of all because he would not haue the French King haue so much which he might thinke too much for the present if hee considered it with the times before Lewis the eleventh wherein as the Peeres and Parliaments had too much so the Kings had too little so that their difference of Dominion is not according to that fullnesse Princes can make it when they are once in possession of a Kingdome nor according to that diminution wherewith disloyall subjects impaire it when they threaten and raise a rebellion but it is according to the severall meanes whereby they attaine or obtaine their Kingdome Now all supreame Dominion in a Monarchie is attained by conquest or succession or obtained by election Kings that come to it by the right of conquest may haue as much power as they will take they make their owne Charters those that come to it by succession haue as much power as their ancestours accepting of such lawes as they finde those that haue it by bequest Cujacius observ lib. 7. cap. 7. and are adopted heires for adoption is good by last will and testament haue the same right that a naturall successour hath if the adoption stand good Hottoman illustr quaest 1. As the Kingdome of France was giuen to Edward the third by Charles the sixt but those that are called to it onely by election their power is restrained and curbed with cautionary conditions and stands limited by them Now if all these haue great power in their supreame government by any one of these rights to attaine a Kingdome surely hee that hath it by all these rights conjoyned hath more power then any hath that is intituled to it but by one Brissonius de Regno Persico lib. 1. especially by election But our present gratious Soveraigne hath it by lineall succession from an absolute Conquerour which was confirmed to his father of pious memory by the Nuncupatiue will of his sacred predecessor Anno Iacobi A just recogniâ—on of an vndoubted succession who then adopted him and all was made sure vnto him by the electiue assent of the supreame Nobility without any crosse-course conditions as falls out when the souldiers or people elect And as it is plaine that hee holds by all these so I doe conceiue I could make it appeare that most Kings in Christendome hold primarily and principally but by one of these and that of least power But that I am loath to touch the ticklish and tender titles of forraine Potentates neither will I speake any thing of them as their states now stand but onely in a word shew what anciently they were for in my poore judgement their government may bee as good and lawfull if they haue had the power and opportunity to cast off and free themselues from these bridles and curbes of government for not the most limited power but the best rectified is safest both for Prince and people § 3 To shew then how it was with them heretofore and to begin with the Empire after it was translated to the Almaine Long hath that Empire continued by the election of the high Chamber of the Septem-viri the seaven selected Electors of Germany and some of the best Emperours haue so well liked it that they haue not onely beene willing to take the promissarie oath containing divers strict conditions but haue also granted them new free Charters and large prerogatiues as Charles the 4. in his Bulla aurea and so held so loose and light a hand over them that one of the Electors the Bishop of Ments in the Councell at Franckford said the government was Aristocraticall which might bee well taken if he meant it with reference to the Councell Clap Arca lib. 5 Comâ— 10. 〈◊〉 Graâ— cia l. manâ— Guic hist Iereâ— The Kingdome of France seemes not to haue beene anciently so absolute and vnrestrained as now it is for the twelue Peeres of France qui sunt ut in Germania principes electores had not onely royall priviledges and did not owe simple subjection but respectiue homage and had a regall authority in their severall Provinces and the command of the chiefe forces but also had the power if not to elect their King as Nauclerus saith and as it seemes true because they haue deposed them yet to determine when there is no great doubt who shall succeed and their setting alwayes vpon an heire male which is the course of electiue state shewes it to bee somewhat electiue for the restraining of it to the heire male did not primarily proceed from the Salique law because many of their Kings haue beene Lorraines Hottoman apollogia Catholica §. 6. which Dukes the French Civilians say doe not obserue nor are vnder the Salique law but if it bee not electiue it seemes not to be so cleare a succession because it is a masculine feud entayled vpon the heire male yea the predominant extravigant power of the Parisian Parliament seemes to intimate that the ancient state was not so free and absolute a Monarchie for they called in the Kings edicts sent forth the contrary and no appeale lay from their sentence Contra illud tantum supplicare licet a petition of right onely was permitted Gymerus Comment in prag sanct tit de autoritate Conciliorum so that this state which is most absolute of all others seeemes to haue been anciently not so free and uncontroleable in its government as a free Monarchie ought to be The next is the Kingdome
naturall inclination is not so perniciously pragmaticall they are farre from the tricks of tumbling projecters and all actions proceed either from our generall end or particular inclination and this inclination is fortified and confirmed if not formed and framed by their studies which haue a great influence into the disposition I haue not in this discourse entred much into the commendation of an Aristocracie in generall preferring it before a Monarchie partly because I feare lest some should serue me as Castellanus a French Phisolophy reader who as I conceiue was Ramus his Tutor served his antagonist Bigotius For when Francis the first was desired by some of his Nobles to reade Bigotius his Disputations Castellanus told his Majestie he was an Aristotelian and Aristotle preferred an Aristocracie before a Monarchie Thuanus hist lâ—b 6. so tooke off the Kings affection from him But he might be so excused because I doe not beleeue it was Aristotles judgement but his policie to disswade all others from affecting it that his Master Alexander might effect it But I did purposely forbeare it because it was not my proposition that an Aristocracie is simply a more convenient forme of State than a Monarchie but that this Aristocracie is more convenient for this State at this time considering that it was received with an vniversall consent and desire of all and hath its right according to the lawes is most easily ruled by them not easily nor suddenly disturbed or disturbing and most easily reformed if it bee disordered so that I may now vndeniably conclude that the present state Ecclesiasticall is most convenient and best agreeing with the Civill A DIGRESSION DISCVSSING Some ordinary exceptions against Ecclesiasticall Officers THough none bee more loath and fearefull to come within the lists of controversies yet seeing all that I haue already positiuely discoursed is not onely controversed but also contradicted by these exceptions I resolved to dissolue and dispell them least they should by a darke reflexion cloud my cleare proceeding And I am not a little confidenced in my purpose when I consider whose cause it is that I vndertake even the most able advocates of the Church such powerfull pleaders as are infallibly sufficient to defend both their cause and mee their poore defendant for they are absolutely able if their conscience would but dispence with their vnderstanding to make a bad cause if not good yet to put it in a good case by making it plausible so that I am encouraged to vndertake it with this consideration that where I am found weake and wanting they are sufficient and ready to succour and supply if they shall apprehend the exceptions peremptory and pertinent and any impeachment to their practise and power As they that haue made triall of their strength haue found D. Couzius his apology for proceeding in high Commission though they were of the strongest and most popular partie which they the more wondered at since they knew they had but few friends and themselues small in number especially in the beginning of the reformation when there was such scarcitie of Civilians that the Vniversities tooke little notice of their degrees or profession or the Courts of their practise but now wee haue a most happy and hopefull increase and it were to be wished that the land were more stored with able Civilians though they â—â—e not pragmatiques I meane that the knowledge of the Civill law were more regarded though the practise keepe but the same degree of respect for then should wee haue more able Common-wealthes men at home and more absolute Statse-men abroad for all the nations round about are ruled by the Civill law as we are by the Common law onely they haue some particular decrees manifestations and sanctions as wee haue statutes and Acts of Parliament and so by that law the treaties we make for matters in question are to bee decided by that law that which is determined by consultation and agreed upon is to bee concluded so that it must needs bee that he that is well seene in the Civill law is best able to treat with them with more honour and lesse danger to the state for in them there is onely the feare and danger of perfidiousnesse whereas the other may want honesty and ability both though their instructions bee never so punctually accommodated And this is one maine reason as well as the Popes power why many Deanes Bishops and Lord Chancellours who were Doctors of the Civill law were sent Embassadours when the Nobility had not so much law and learning as now they haue so that for this last present age we haue not lost so much in treating with France where the Civill law is most practised Comâ— 11. li as to confirme or continue the proverbe which I finde mentioned in Phil. de Cominaeus Paectio nulla inter Gallos Anglos in which the French did not get the better adeoque proverbio dicitur apud Anglos quoties cum Gallis proelio certaverint victores plerunque fuisse quoties verò cum illis pacti sint detrimentum semper aliquid accipisse which was most verified from the time of Edward the 3. to Queene Elizabeth but it is probable their over-reaching was much helped forward by dishonesty where they found any little want of ability but grant it were the disability of our agents especially in the ignorance of the proceedings and advantages of the Civill law in buâ—â—â—es of trans-action wherein the French were defendants and passiue yet it was not any honourable advancement to them though it were some small disadvantage to us for it is a disgrace for a Prince to stand strictly vpon tearmes trickes and turnings of law in the interpretation of treaties as Maurice Duke of Saxony told Charles the fift Carolus Molinaeus consâ—â—lio secundo in causa Philip. Lond. graue Hassiae when contrary to agreement he detained Philip Landgraue of Hessen at ego saith he te tanquam Imperatorem non tanquam iuris-consultum legistam volo pactiones foedera interpretari But since treaties are too often so interpreted it is in all probability a great assurance of safety in treating to understand the Civill law at least in the proceedings and hence it is as I conceiue that in France and Italy it is so much esteemed so that in France most of the ancient Nobility were students in it and had amongst other priviledges that they may take the degree of Bachelour at law in three yeares as it is plaine in the pragmaticall sanction which particular is also confirmed by the Concordata Galliae Prag sanctio tit de collationibus Concordat Galliae tit idem by Leo the tenth Bacchalaureo iuris Civilis si ex utroque nobilis triennium satis erit In Italy also it hath beene highly esteemed especially in the first reâ—â—iving of it under Lotharius secundus in the yeare 1125 for he found a coppy of the Digest and gaue it to the Pisans which was then
support it selfe being thus abandoned all lawes did free them from duty and dependance Baron nal 4 But to make these generall grants the stronger they pretend particular grants from our owne Kings as from Ina King of the West Saxons that was indeed religious and from King Iohn that was impious as well sans foye as his title was sans terre as the King of France Math 1216. Philip the second said Iohannes nunquam fuit verus Rex neither of these binde our State for â—he Peter-pence contributed to Rome by Ina are called in the lawes of Conatus Larga Regis benignitas and in the abstract which is the best of the confessours and conquerours decrees Regis Eleemosynae which imports not due nor duty but charity and the Popes to be his beads-man not the King to be his homager There were many manifest nullities in King Iohns grant for he had no right to hold the Kingdome and if he had held it by right yet he could not grant any thing in prejudice of the whole State without the consent Regni vniversitatis as Mathew Paris tearmeth the Parliament and a third mullitie is in the force of the grant where whatsoever is passed in the body of the grant is resumed by this proviso in the conclusion Math. ibidem Salvis nobis haeredibus nostris Iustitiis liberalitatibus regalibus nostris which being luckily inserted salues all and makes it absolutely voyd But the maine grant which Baronius relies vpon is a donation from Ethelulphus King of the West Saxons which seemes very lawfull if it were as he saith salubri consilio Episcoporum Principum Baron Annal. Anno. 854. but yet that deed if wee free it from being forged was voyd if you doe but consider amongst many other things the incompetencie and incapacitie of the person to whom the deed was made Now Baronius is peremptory that it was made to the immediate successour of Leo the fourth which according to all the truest writers of the Popes liues was Iohn the eight which they conclude was a woman fu vna donna natio de Inghilterra che vacata là sede Apostolica Petro de Mexia della silva cap 9. per la morte di Leon quarto fu eletta per sonno Pontifice di Roma as Petro de Mexia and Boccacio de las mugeres illustres the King might perhaps haue done much for his country woman if he had knowne it but shee was not capable to receiue such a deed to her vse and therefore the Iurists haue reason to make this question Hottoman quaest illust 17. Vtrum acta Iohannis octavi in papatu rata esse debent And if what shee did was voyd what was done for her iâ— not firme being it was given supposing shee was capable So it is plaine that this engine is not able to vphold this claime being so loose and hanging together in the joynts like sick mens dreames shewing their inconsiderate inconstant humours their proofes being as weake as their imagination is strong all standing vpon slender supposals particular interest making partiall But they haue another ground for a presumption of their right because some poore oppressed Princes haue desired to hold their kingdomes from them as some vsurpers sought to obtaine dominions by their gift who depose Kings that they may dispose of their kingdomes But this is nothing and they stand not vpon it but when they haue nothing else to say I doe not by this goe about to deny that our Kings haue beene bountifull Benefactors to the Roman Clergie but this onely I stand vpon that they haue no reason to continue so still since they were never lawfully bound to it Neither doe I deny that any Prince should conferre favours vpon some forraine Ecclesiasticall State with this caution that he be not prejudiced by the kindnes may haue so good vse of their thankefulnesse As suppose any Prince should be called into Germany or Italy Dies nuâ— transit 〈◊〉 aliquod pâ— fecerit sâ— vt Aeraâ— non eveâ— vt de Seâ— Lampr. or any other kingdom by an oppressed State Ecclesiasticall that Prince may doe royally to invest them into their former spirituall possessions and yet never impoverish or inslaue his owne kingdome to them and also binde them to him for protection Thus did Pipine Charles the great Lodovicus pius they releeved the Roman Clergie and bestowed very much vpon them in large territories but they gaue them nothing in France but onely what they recovered for them in Italy it is then evident Guicc li hist Itaâ— that our King hath no reason to bestow honour or power revenues or priviledges vpon any forraine State Ecclesiasticall and it is as plaine that he hath the greatest reason of any Prince in Christendome to bestow them all vpon his owne domestick Clergie § 6. The Nobility and the Clergie are the prime pillars of a Monarchie and the Communaltie is the ground whereon they stand And this they well know that intend the ruine of it for they will be sure to strike at these two props knowing that then it will fall and the ground and foundation remaine to them to erect a-new as Ball a Masse-Priest Chaplain to Wat Tyler advised his chieftane to destroy all the Clergie and Nobility so Garnet did the Traytors in the powder-plot as the Earle of Northampton well observeth and therefore Philip the second of Spaine who was seldome in an errour about the vpholding or inlarging a Monarchie advises his sonne Philip the third to stick fast to the Clergie los Clerigos amigo as I haue beene but yet so as you disregard not the Nobility otherwise they will hate you and envie them and ruine all Now if the Kings of Spaine haue reason so highly to favour their Clergie as to feare least their kindnesse to them should kindle indignation in the Nobility surely our Prince hath more reason so highly to succour his Clergie as that it may not be the object of the contempt of the vulgar For the Clergie of Spaine and all the Romish faction are not simply subject to them but deny Civill obedience alwayes to their Prince where Canonicall obedience commands the contrary or priviledges aboue it when as our Clergie are as true subjects as any State renounce all obedience to any other Potentate So that this hearty adherence to his Majestie is one reason yea they bestow all their labours in Gods service onely in dominions expect favour from none but his highnesse and they are more beneficiall to their King than any Clergie in Christendome to his natiue Prince or any State in this kingdome to the Crowne For though the revenues of other Clergies as of Spaine be infinitely aboue ours Nicholaus Olâ—evâ—â— de regno Hispaniae as one of their Historians Opes Ecclesiasticorum paenè aequales sunt secularium vnà cum Regis Yet they are not so constantly beneficiall to the King but to the
Pope and if the King get any good sum or subsidie out of them it is either la cruzada or tenths called el excusado granted to him by the Popes indulgence or if he cannot procure a Bull of facultie he must get all they giue by striving and force as Cardinall de Ossat in his letter to Henry 4. Ossatns epist 274. of France speakes of Philip the thirds sacriledge Rex Hispaniae omnem argenteam supellectilem Ecclesiarum Ecclesiasticorum sacrilega manu vsurpare tentat when as our Clergie which haue not the tyth of the tenth part of that meanes is not only now and then profitable in small matters And if Francis 1. beleeved that for a great kindnes from Pope Leo the tenth in their conference at the interview to haue the tenths of Ecclesiasticall livings in France for one yeare Guicc hist lib. 12. as Guicciardine in a judicious sleighting of the favour Promes se il Pontifice al re dargli faculta di riscuotere per vn anno la decima delle cheise del Reame de Francia that the King tooke the proposall into consideration and communicated it to his Councell who thought it a great benefit if he might haue them non secundum antiquum valorem beneficiorum Concord◠liae tit d libus but as they are improved surely a farre greater benefit it is to haue the tenth every yeare Subsides most yeares and first fruites the first yeare and that not according to the present value which is much fallen from the ancient revenewes but according to the Popes bookes in most when as Ecclesiasticall preferments are abated halfe in halfe So that as all other states are more charged so their revenewes are improved accordingly but the meanes of the Clergie is much impaired and yet their charges increased in many things in all things keepe the old rate so that notwithstanding the poverty as S Nicholas Bacon at the Councell table we haue no reason to exact or expect any subsidie from the spiritualtie who are so exhausted yet it is constantly the most beneficiall state of this Realme to the Crowne both in ordinary and extraordinary revenewes In these two considerations amongst many wee see they deserue much and there is one thing that makes it more safe for our King to bestow greater honour and priviledges vpon them then any other Prince which is because he hath not the reason to suspect them of ambitions aspiring to a Monarchie since they haue cast off their Church Monarchies as the Romans never suspected any of a tyrannicall vsurpation after they had by one consent cast out the Kings so that though the Pope seeme to favour the Clergy vpon good reason yet our King hath as much and this reason more then the Pope hath for he hath not onely all the power of jurisdiction the Pope had over them 1. Eliz. but also the revenewes also the Pope had from them and yet is without feare and danger of being rebelled against by them or dis-throned But in one thing it is more capable of a royall Potentates bounty and protection then any forraine Clergie is in respect of its owne Civill supreame head or any state in our owne Kingdome is of our King and that is that it is so poore and obvious to injuries that it will make the ordinary bounty of a Prince magnificent and make his power long and delight to protect such an innocent state being neither able to resist nor strong to endure and suffer wrongs thus from the power of Dominion passeth the influence of protection THE THIRD CONCLVSION That all the rights and respects that the state Ecclesiasticall enjoyes or desires are originally derived from their relation and dependance on the Civill HE that hath publique power and an opportunitie to doe a great good turne for endearing a private friend that depends vpon him will haue much adoe to forbeare to doe it though the weale publique suffer some detriment by it Yet if his friend doe so much tender the publique good that he will not desire any thing to the prejudice of it surely then the publique person out of his engagements and respects to the publique good will leaue off his present purpose and pleasure his favorite in some things that may doe him good and the Common-wealth no harme Even so our supreame Regent of great Brittaine hath great and transcendent power and never wants an opportunitie to doe good bestow favours vpon the well deserving state of the Clergie and it were impossible for him to hold his royall bountifull hand if this Clergie should not in all its petitions consider the publique good apprehending it selfe as a member of the Civill state And hence it is that though the King hath more power then I beleeue was ever tried or can be defined to doe his Clergie good yet they haue not any thing conferred vpon them which is not according to the lawes customes and liberties of this Common-wealth All that the state Ecclesiasticall enjoyes belongs to it as to a principall member of the body politique and is derived to it from the supreame Civill head on which it doth depend and in whom it is vnited to the Civill state It is no debasing or derogation to a spiritualitie to bee thus subject to the Dominion of a sacred Soveraigne for though servitude according to the Civilians proceed not from the law of nature but of Nations or at lest from nature corrupted as the Schooles yet orderly subjection and superioritie proceed from the instinct of pure nature for in Heaven there is order amongst the blessed Angels and in the state of innocency there was superiority not onely betwixt man and all other creatures but also betwixt man and woman and had they lived in Paradise till there had beene father and sonne there should haue beene Patria potestas or else the fifth Commandement is not morall and when there had beene many families there must necessarily haue beene Regiae potestas or else the best and most happy life must haue beene without the greatest happinesse of life which is order Now the superiority of our Prince over his Clergie is not an enslaving tyranny but a sweet and a lawfull Soveraigntie which government as it is due so it is our duty to obey it for government and obedience are relatiues of equall extent And as it is no disparagement to the state Ecclesiasticall to bee subject to our supreame Magistrate so it is great benefit to the Clergie and a satisfaction to the Laytie that all the rights and respects that they enjoy or desire are deriued from that Prince whom both so willingly obey § 2 All that the state Ecclesiasticall doth enjoy or claime may bee reduced to these two heads of power and of honour and they deriue these from one sole supreame governour who is fully qualified by his personall eminent authority to transferre and conferre these rights and respects to them and vpon them for as these two
is the prohibition that is lawfull as for a prohibition of fact which is by a sophisticall suggestion sucked and squeezed out of the copie of the libell without judgment of the Kings Courts vpon it in my opinion is not right and is many times the cause of wrong either in vnjustice or delayes yea and in abusing of the Statute with the Kings Courts For the prohibition of law the most I conceiue it inferres is to make all the proceedings voide Coram non Iudice But if I might know what degree and quality of offence it is for a Court temporall to hold plea of a meere Ecclesiasticall cause I should more easily apprehend the scandalous nature of the ground of a prohibition which it may be is the same with a writ of errour in the temporall Court since that a consultation doth not ensue vpon that but after a prohibition grounded vpon a suggestion So then all the proceedings of these Courts haue their power from this last act of supremacie as well in primatiue processes of inquisition as in punitiue processes of execution As this authentick authoritie is most seene in the proceedings ex officio which are not onely nor alwayes by oath as many are mistaken These are by immediate commission where an Ecclesiasticall cause is criminall and prosecuted as criminall And so also the vtmost punitiue processe Ecclesiasticall which is a writ de Excommunicato capiendo is evidently derived from the Kings power and issueth immediately from his favour to the Church that it may be more easily obeyed Iohan. de Paris de Potestate Reg. Concl. 1. and is divers and variable in sundry governments and executed by temporall power being nothing of the nature of the spirituall excommunication but an accession concessâ permissione ex devotione Principum as Iohannes de Parisiis saith against Boniface the eight As for the judgements of Bishops consistories as they are derived from the power and law of Christ the great Bishop so they are like the judges of them who are rather arbiters amicabiles compositores as Panormitane then Iudges ruling by the austerity of authority so that poore defendants may flie to them as to their altars who are Ministers of the altar and in this sense that which Architas speakes is most true Arist Rhet. lib. 3. c. 11. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem esse arbitrum Aram. And though they haue no forcing power but from the King and no power of any force against the King yet the greatest and best Kings haue yeelded to them in their advice not as Prelates but as they are Fathers in God as Alexander the great said to his father King Philip 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Chrysost 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 farre vnlike the Bishops of Rome who will rule the highest Princes and yet professe themselues servants of servants which makes mee call to minde the observation of the wisest King Salomon Proverb 30. that one of the chiefest instruments whereby the earth is shaken is a servant that rules over Princes And as they vsurpe rule so they vsurpe the sword of temporall Princes and carry it in the spirituall scabbard and drawing it doe more hurt in their passion then they can help by their priviledge when as they found it soberly and orderly put up by St Peter when Christ was at his elbow to heale the greatest wound that hee could make Thus is it somewhat plaine how Ecclesiasticall power is derived from the King as hee is supreame head in lawfull and full authority over all causes and persons which double power in my conceit the custome of the ancient Persians at the death of their Monarch doth fully and fitly expresse for the lawes are silent Brisso◠Regn◠lib. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their holy eternall fire which every one worshiped in his private house as his houshold god was put out when the Emperour died § 4 The next thing which I promised to declare was how the honour of the state Ecclesiasticall is annexed to the power by the Kings lawes and royall prorogatiue The honour of the Clergy is contained in revenewes and priviledges 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A◠lib. 1. which are vnited to their powers of order and jurisdiction which powers although we should grant that simply considered in themselues they are not distinguished jure divino yet I am sure none will deny that they are distinct quoad extensionem permissione approbatione divinâ as Iohannes de Parisiis doth distinguish the power given the Apostles into six parts in respect of so many severall acts of execution the fift of which is potestas dispositionis ministrorum secundum quosdam quoad determinationem jurisdictionis Ecclesiasticae ut vitetur confusio Ioh. de cap. 1 And as they are thus distinct according to the execution and stand so confirmed by the positiue lawes of the land so they haue distinct portions and priviledges according to the same lawes yet after a different manner especially in respect of the portion For the power of order which hath maintenance of diverse kindes as tithes oblations Gleabland and mortuaries holds them all according to the lawes of this land as due to the Clergie for executing the power of order but by different acts of these lawes as Mortuaries are permitted and Gleablands granted Tithes and Oblations confirmed and all constrained to be paid Now tithes that are onely confirmed by the Kings positiue lawes are supposed to bee due by some other law of higher nature then the Kings which is not any forraine law Bellar. de Cler. lib. 1. cap. 10. as Ius Ecclesiasticum as Bellarmine calls the Cannon law it must bee then by law divine or immediately arising from supernaturall and morall considerations which law we grant to be positiue yet not meerely humaine Hooker Eccles Polit. l. 1. §. 15. nor changeable in respect to us and they must necessarily runne into many grosse errours that take onely such lawes for positiue as are invented by men and thence conclude them mutable And therefore I presume that the learned Selden doth so vnderstand the positiue law by which hee holds tithes to be due not in opposition to divine and morall but as specially diverse from it as it partly appeares in the whole drift of his history where I doe not beleeue that any can finde that hee ever delivers his judgement denying them to bee jure divino so that in my apprehension and I hope not against his intention he may doe the Church much good in his relating what wrongs the Clergy in all ages haue sustained For his history is onely de facto what hath beene done hee giues not his judgement de iure what ought to haue beene done which if he had he would assuredly haue pronounced for them and this I am forced to beleeue when I consider his exact generall knowledge and the reverent respect he beares to
authentique antiquitie I doe not in this confesse that they are not iure divino because I affirme not them to be due by the law of Moses that is no direct consequence vpon my proposition for not onely the judiciall law which was the commend and I beleeue in most points is still the counsaile of the most wise God especially in this particular where the ground of the command is morall doth proportion a tenth part as necessary then to be paid and though the same necessity binds vs not now yet the correspondencie of the conveniencie as I conceiue doth hold vs as strongly to it as it did that state For I see no inconvenience in tithes-paying in our state more then in theirs but onely they were brought home vnto Priests which onely exception Mr Cartwright makes against tithes Annot. iâ— Test 7. But I stand not onely vpon this but I am also partly perswaded that they were confirmed by Apostolicall approbation though it bee not in expresse words so set downe For though the Apostles did all preach the Gospell yet they did not all write neither did those that did write commit all to writing which they did teach 2 Thes for St Paul adviseth the Thessalonians to keepe the traditions they had beene taught either by word or epistle And therefore it is freely acknowledged by a famous Orthodox divine of our owne non omnia esse scripta in libris voteris novi Testamenti Whittakâ— Bellar. qâ— cap. 6. quae Apostoli aut docuerunt aut fecerunt sed fatemur Apostolos ritus consuetudines sanxisse non autem scripsisse hence it is probable that they might by consent confirme them because it was not onely a custome and a law then in force and they did not delight to innovate but vpon necessitie but also because we doe not finde one word of their abrogation or alteration Yea it seemes to mee that the author of the Epistle to the Hebrewes entitles the Ministers of the Gospell to them by a more particular right Heb. 7. as Bishop Andrewes calls it jure Benedictionis for it is not onely said that Abraham paid Melchizedeck tithes as hee was the highest Priest Benedixit tantùm vâ— vatus ex â—tione sed perior ex â—ritate but that hee received them and blessed him which implyes blessing to be the duty he performed for them And whatsoever wee hold of these tithes I assure my selfe the Primitiue Church did so conclude otherwise they would not with such a generall consent haue bound themselues to that meanes and portion of maintenance I speake of the Church in statu pacato it was otherwise with them I confesse in statu perturbato in persecution but not out of good choise but hard chance For obserue but from the first generall Councell of Nice not to reckon vpon Provincall Synods because they doe not bind our state but onely in point of doctrine and example peruse them till the last of the Lateraine and you shall finde they are plaine and peremptory And not onely in the acts which in some Councells are erroneous as in the second Councell of Nice being the seaventh generall there is a Cannon very particularly passed with a generall consent so in the Councell of Lateraine vnder Innocent the third Balsomon concil Nicen. secundo can 12. Concil Later 4. can 54. where it is particularly set downe that the English Ambassadors were present There is a Canon that runs thus Statuimus quòd solutio decimarum praecedat exactionem tributorum We haue nationall Councells also as at most Coronations of the Kings before the conquest and also immediately vpon the conquest and many generall Charters wherein tithes haue beene confirmed to the Clergy and that with solemne vowes and imprecations which dedication to God if there be no other divine right puts the detainers of them into Ananias and Saphira's case Acts 5. because that though while it was wholy with them it was their owne yet when it was thus seperated by their solemne vowes then sanctified by the solemne act of Bishops not onely ratifying the Founders vow but consecrating them with the Church to divine vses the nature property with the propriety was changed So that I will conclude from these premises that the positiue law by which tithes are due to the Clergie is not meerely humane but mixt and preternaturall because it binds men as they are members of the supernaturall society of the Church visible and because they haue bound themselues by it in divine considerations But yet they are enjoyed by the confirmation and constraining power of the Kings lawes And were it not for the lawes as they are an vndoubted due so they would be a perpetuall debt with many and that out of severall grounds some desiring to haue stipends in stead of tithes doe too willingly remit them for a sufficient stipend though it bee vncertaine especially to their successors But I hope this ground will never be generall as long as this Kingdome is a Monarchie for if it is a miserie of free Cities and Democracies Arist 〈◊〉 4. cap. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet I must needs confesse that at the first originall of Vicarages they had but stipends but it was vnjust Linwooâ— cio Vica roch Vicarii stipendio sunt contenti which was but a permitting provinciall constitution Another meanes whereby the due payment of tithes is impeached is the customes of many places which are lawfull and laudable with these conditions if they were not the inventions of men but begotten by time and if they be as reasonable as ancient Cujaciuâ— pus Vlpiâ— 10. nam debent esse tà m necessariae continuatione quà m rectae in ortu and where the law is defectiue for customes against law are voyd by the Civill law if they bee not expresly confirmed by the supreame power With these conditions let customes be enjoyed L. Sacra Q. de leg But the next pretense is prescription against tithes once paid and that we may admit with his limitations as that it extend not to those things that cannot be alienate that are annexed to the Crowne Dier rep 31â—1 or if it stand not contra statutum postea editum and be granted vpon a good custome and the person qualified to possesse the thing claimed for lawfull prescription cannot proceed without as lawfull possession The want of these lawfull limitations made the Councell of Laterane vnder Alexander the third condemne and controule the grand prescription of Clyentary tithes continued from Charles Martellus Duarenus nef l. 6. 〈◊〉 The taking away of which shirking shifts made many devise another which priviledge is either of societies or persons granting immunities from payment of tithes which pretense of all others as far as I vnderstand cannot bee made good by the most favourable forced interpretation that may be for they are void and nullified according to all the restraining Provisoes that bound a priviledge For
they were granted against the law of God and nature not onely besides it there are some revoked by the same power that granted them as Innocent the third in the fourth Councell of Laterane And in this particular Kingdome Henry the fourth made many statutes to restraine those priviledges granted to the Friers 4. Hen. 4. c. 7. especially providing that none should haue any de novo but that which proues them void in this Kingdome is that not onely the particular persons but also their whole societies are dissolved and distroyed and so they are expired and extinguished with them Bartolus in D. Q. Sodales tit 24. Idem ibidem Destructo Collegio pereunt privilegia especially when their revenewes are confiscate non privilegiatus praescriptione non succedat privilegiato But when other meanes began to be restrained they procured appropriations and annexions of benefices presentatiue not onely in point of patronage but also they tooke the whole due without discharging any of the duty which last and worst pretense I will not deny but the wit of man may make it plausible yet I am sure it will never bee pleasing to the will of God Monkes and Friars were the authors of these immunities and appropriations to omit customes and prescriptions because they doe not so much wrong and haue more ground of right I doe not accuse the Monkes who lived in the first fiue hundred yeares after Christ who lived holy and laboured in their callings and had no such priviledges Neither doe I condemne Benedict who was the father and first founder of all that professed a regular life in a sequestred cloyster in the Western Church Hospinianus de origine Monaâ—hat For he had good reason so to doe considering the tumults and many broiles that fell out vnder the government of Iustinian by reason of the continuall incursions of the barbarous nations into Italy But when he was thus shut vp many resorted vnto him admiring his devotion at last they tooke rules from him and grew into a fraternitie of the Benedictines and from them sprang many other orders who living a life far different from other men bred great wonderment in all and that admiration procured adoration of their profession made those that were able bestow great revenewes vpon them Yea they did so dote vpon them that after a while they endowed them if not with the greatest yet I am sure the best and fattest part of their Countryes insomuch that most of the most pious Princes of Christendome were forced to make a statute of Mortmaine like Moses Exo. who made the first statute of Mortmaine for these revenewes which they possessed were in a dead hand that did no good to the Common-wealth Whence we may obserue that this statute was rather for the benefit of the Common-wealth then made out of the dislike of the Church meanes especially since these Friers were not of the Clergie but meere Lay-men and the Clergy had as much reason to desire a law for Amortization as the Common-wealth because as they had conferred lands and goods vpon them for not onely Princes but Popes were taken with admiration of them so they were also more charged with the publique and had lesse meanes And this statute gaue the occasion to them to procure priviledges and immunities from payment of tithes For though at first for a time they came to their Parish Churches yet when they procured to haue Churches or Chappels of ease for their fraternities then they obtained under Alexander the third in the Laterane Councell when hee condemned prescription Duaâ— nef lâ— to be confirmed priviledged from payment of tithes of those lands which they tilled themselues when as Adrian the fourth our country-man his immediate predecessor had revoked or restrained the immunities granted to them by Paschall the second Flavius Chen Compend Bulla tom 1. Paschal But when Innocent the third who loved to bee doing and vndoing restrained the grant of Alexander the third which they perceived did much prejudice their plentifull profit they procured dispensations from the Pope to haue parsonages appropriate to their houses in more great abundance For I deny not but some were annexed before as to the Abbey of Crowland and others yet these were granted more by the Popes licence then the Princes authoritie And then began the Schoolmen to entangle the right of tithes and their curiositie and their covetousnesse enabled them and put them vpon it for when vnder Innocent the third they multiplyed into multitude as there were sixteene orders set vp in that Century and hee limited and lessened their revenewes they sought to maintaine that by right which before they had obtained by wrong and retained by protection and priviledge Then began the contention betweene the Schoolmen and the Cannonists about the right of tithes and I conceiue Innocent the third to be of the Canonists part because he was the first great advancer of them in the Church and no free friend to the Friars This I haue conceived by comparing Church histories with the Cannon law especially Decretalls these wrongs of the Clergie were so brought in and vpheld so continued in our Kingdome till Henry the eighth of famous memorie who either intending a reformation in religion seised vpon the revenues of religious houses or ayming at their revenewes set vpon rather then finished a reformation confiscated them to his vse as escheated as their lands were and seises vpon their appropriations which were not theirs but morgaged as it were in commendam to them and he possessed the Crowne of them and sold them to private men which hold them by as much right as the Monasteries did no better Though some would willingly perswade themselues that they hold them by as right and just law as they doe any purchased inheritance for they say though they were once spirituall yet now they are made temporall lay-fees by the lawes of dissolution especially in the two and thirtieth of Henry the eighth It is true that those statutes apply diverse law termes I will not call them meere law fictions to those things that properly belong to temporall inheritances and haue made them demandable by originall writs and given order of conveyance by deed fine and act of Parliament which act as it is bootelesse so it is contumacie in any private subject to question onely thus much I hope I may say without generall offence since I conceiue it the truth and yet not all the truth I doe not yet vnderstand how that can bee made manifest to bee a free Parliament in that point For I doe not beleeue that the lower House did either propose or generally approue it though they assented to it Neither doe I thinke that King Henry the eight did freely propound it out of his owne choyce but that the necessity of the present time did put him vpon it And I hope he intended to call it in if hee had lived As
Dionysius the King of Syracusa in Italy when his treasure waxed too short for a great imployment 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Poly◠Strat hee commanded to take the treasures of Asclepius his temple and to proclaime them to be sold in the market as profane and common commodities which the Syracusans were very eager to buy because they had Church-bargaines But when hee had gotten what his necessity required he presently sent forth an edict 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that if any one had bought those devoted treasures they should againe restore them to the Church This course had beene somewhat just if hee had let them enjoy the treasures vntill they might haue regained by them what they cost as perhaps most purchasers of Impropriations haue But that which most hinders me from apprehending it to be a free pure act is because the most actiue and spirituall part in Parliament was pittifully passiue in it it was at best mixt by reaction in the patient Clergie who did neither absolutely obey nor resolutely resist but silently suffer that to passe which was not right and therefore the act was not free from wrong Neither doe many of the judicious sages of our law so fully approue of it Consideration 6. Yea Sr Francis Bacon in his considerations of the Clergie of England dedicated to King Iames of peaceable memory confesses that hee was of opinion that all the Parliaments since the twenty seventh and thirtie one of Henry the eight stand obnoxious and bound in conscience to God to doe somewhat for the Church to reduce that patrimonie or that since they haue debarred the Church of her dowry they should make her a competent joynture Which opinion of his is more ingenious in my apprehension and advantageously pertinent than theirs who onely enveigh against the Parliament and Henry the eight the head and ruler of it which act admitting the necessity then that vrged him to vse the power of Ecclesiasticall dominion is not altogether inexcusable though this reformation did more wrong to the Clergie than the conquest For what he was to do was to be done in haste and in that routing-rush of reformation who could expect but the part corrected must needs be for the time neere to vtter ruine though happely if the author of the reformation had lived to finish it amends would haue beene made in some measure But Henry the eight did rather put down the Roman Church than set vp ours as Alexander the great pulled downe the Persian Monarchie but set not vp the Grecian But to pull downe one was the onely way to set vp another as Aristotle rooted out all the opinions of the former Philosophers to set vp his owne or as Hypocrates who being their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Zetzes in his Chiliads he burned the bookes of all the ancient Phisicians to set vs his owne Chil. 155. or theirs as his So that if a publick reformer begin once to alter he must of necessity for the time stirre if not remoue more than hee first intended especially if hee be crossed and curbed by an adversary that stands strongest by that part which needs reformation and by that in it which will best helpe him in the performing of it For he that will prevaile against an incroaching enemy that hath a party in his kingdome must be sure with all apt industrie to obserue and oppose him in his counsels by bereaving him of his counsellers and agents either by taking them away at once or putting them as exiles from him or pulling them to himselfe which is the safest and honourablest course Now the Pope who was the absolute insolent adversary to Henry the eight stood by the Monkish part of the Clergie and chiefly by their rich revenues and therefore it behoved the King either to reconcile them to himselfe or vtterly to ruine them as fell out because they rebelled And in the persecution of them hee ranne a cleane contrary course to the Pope As I remember when Cyrus tooke Babylon he drew Euphrates drie and made all land And Xerxes when he went against Athens would haue made all sea Dion C 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So Henry the eight made all Lay and land when hee intended to be free from the vsurpation of the Pope and the Pope made all spirituall and his See when hee aymed at his absolute vnrestrained extravigancie both in See and Scepter This heat and height of opposition made the King proceed too farre which I beleeue hee did somewhat perceiue in that he did retract in some particulars from the first course As in erecting some Episcopall Seats and more Cathedrall Churches out of the ruines of Monasteries and Priories And in that hee made of the appropriation of Royston 33. Hen. 8. a Parish-Church And I presume he might haue proceeded farther if hee had not beene soone after cut off by death and hindred by profane and sacrilegious instruments while he lived who I perswade my selfe were the same men and meanes that tried to procure the dissolution of the Bishoprick of Durham by act of Parliament during the nonage of Edward the sixth So that the vnhappinesse of Henry the eight is because men judge by the event not knowing the intent as Paulus Iovius exclaimes of him Iovius de vir illust In my minde hee may be well paralelled with Charles Martellus the Champion of the Church who when hee defended the Pope was the first that was called Christianissimus among the French Kings by Gregory the third yet hee was the first that robbed the Clergie in France by giving Clientary tythes Baronius Anno 759. which they call feudall to his followers yea and hee deposed the Archbishop of Reemes and disposed of the Bishoprick to one Miloeo Caualeire So Henry the eight had first the title of the Defender of the Faith for publishing a booke against Luther Bellarm. de script Eccles which Bellarmine saith Roffensis wrote and presently after fell foule vpon the Clergie So that I beleeue the Pope repented of the title and was ready no◠to giue him so good a title as his predecessour Iulius the second gaue Lewis the twelfth of France in his Bull which Guicciardine notes to proceed of malice Guicc hist l. 11. Nella nominon dolo non piu Christianissimo ma illustrissimo But let him be as bad as they will make him yet I dare excuse him as Baronius doth Martellus and say of him as Guicciardine said of the Popes Guicc Hypomn. Polit. 123. that hee was an honest man because he was not more wicked than most men I haue in this as farre as I am able with a good conscience cleared our State from the forraine fame of sacriledge But I cannot free particular men from it which haue no pretence for what they detaine or take from the Clergie but onely that they are not convinced that there is such a sinne as sacriledge and that
because they hold not tythes due iure divino and that because they desire still to hold them by the law of the land And that they may more colourably continue it they hold no such sinne as Symonie that the presented may make a symonaicall contract whereby they are confirmed and corroborated in their sacrilegious vsurpations But I will not dispute the poynt whether there be any such sinne as Symonie in relation to a private presentation without respect to orders taken with it But I am sure none will deny but where is a symonaicall contract there is perjurie in the Instituted As for sacriledge I grant it is not easie for men that are guilty of it to be convinced that it is a sinne For sinnes of omission cannot so quickly and sharply touch the conscienee because they are the breach of an affirmatiue law which doth not so strongly check the vice as informe to the dutie especially when pleasure or profit haue bribed the judgement For I feare some hold stolne tythes the sweetest part of their inheritance as it is said by the Epicures Zetzes Chil. 7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who doting vpon voluptuous sweet delicates called hony the tenth part of the Ambrosia and perhaps that sect set vp the trade of Bee-mongers in Athens as Synesius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synesiuâ— 136. So I am afraid the tickling sweetnesse of tythes is the cause why the smart and sowrnesse of sacriledge is not felt nor tasted And therefore in my opinion Thom. 〈◊〉 q. 155. Thomas Aquinas doth well to make sacriledge speciem luxuriae so that it may be a sinne and yet they never be convinced of it I am sure not onely the ancient Fathers of the most pure primitiue Church but even the godly Emperours did esteeme it a sinne and that in a high degree that when they granted generall pardons at Easter and other solemne timâ—s they excepted sacrilegious persons As Theodosius the great Theod. tit de Indulg Crim. ob diem Paschae quem intimo corde celebramus quos reatus astringit carcer inclusit solvimus attamen sacrilegus maximè à communione istius munieris separetur So also Gratian and Valentinian Religio anniversariae observationis hortatur vt omnes periculo carceris à metu poenarum eximi iubeamus verùm eos excipimus quos scelera graviora compulerunt Theod. eodem tit vt qui sunt sacrilegi sepulchri violatores So in many of the Novels 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vpon Easter day set all persons free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Harmenopulus Promp Iur. Civ l. 6. tit 5. but if any be guilty of sacriledge set him be kept still in hold So that you see it was reckoned inter extraordinaria crimina in those dayes and so it would be thought with vs if profit did not blinde the judgement in the payer of tythes and indiscreet covetousnesse leade many Clergy-men to make no distinction betwixt free and friendly compositions with a bountifull Patron and sacriledge In my poore judgement the Canon Law is but just Quicunque c. 6. q. de Iur. Patronatus in decreeing that Si patronus Laicus ad inopiam fuerit redactus hee must haue some competent sustenance from the incumbent especially if he haue not beene sacrilegious and so by Gods judgement brought to it And I doe conceiue that this may be notwithstanding they doe not charge any parsonage with annuitie rents which is prohibited by the statute of Elizab. 3 Eliz. c. 2. Thus it is plaine that the revenues and maintenance of the Clergie are possessed by the Kings Lawes and may be demanded as due by them § 5. The other part of the honour of the Clergie annexed to the power of order is in priviledges immunities by which this power is exercised with more ease delight and respect and as it were with the whole man without distraction Now all the priviledges the Church doth enjoy or desire arise and are raised by the Kings lawes and royall prerogatiue As that ancient-often-confirmed Magna Charta doth fully confirme all former priviledges of the Clergie Magâ— ta cap And that was then favour enough for then they had priviledges to a surfeiting surplussage but now the Clergie stands in more need of them and they humbly expect them onely from the favour of their Prince who hath a plenitude of power to grant more and larger priviledges than ever they will desire For all priviledges are granted in relation to some Law and the power of an absolute Prince is aboue all Lawes as Dion Chrysostome told just Trajane 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cujac vat liâ— or as the same Counsellour to the same Emperour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Cujacius explaines and limits to coactiue correctiue Lawes which Dion saith began in Augustus dayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion none of the ancient Romans were freed from lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is from the necessity of obeying And I doe beleeue that the Scriptures seeing that they say more for the right of Kings than any booke in the world doe if not fully set downe this power yet permit it with approbation in some cases especially for the publick good of the Church which I am sure is a farre more conscionable and commendable course than to accommodate religion to serue the turne of the State as that judicious Amiratus vpon Tacitus Bisogna accommodar la ragione di stato alla religione nan la religione alla ragione di stato Our King then being a most absolute Monarch hath this prerogatiue and from that wee haue and hold our priviledges not from that written prerogatiue abstracted out of Fitzherberts Abridgement by Sr William Stanford whereby the Kings Exchequer hath many priviledges and peculiar processes as the Civilians call them privilegia fisci fiscus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habet Cujaciâ— serv l. 2 But from an vnwritten vnrestrained right of dominion whereby he hath plenarie power not onely to make legall propositions of validitie or voyde in their first institution or to interpret them either by declaring them to bee corrected in some poyntes and cases especially if hee correct them by a more particular expresse pressing law as hee may correct the law of nature by the law of nations the law of nations by the law of armes the law of armes by the law of particular Leagues and all by the power of dominion or restraine them in respect of some persons or publick societies but he may dispence also with them since some penall statutes are made with relation to his power of pardon after the act therefore it is not so much to exempt them from being obnoxious to the punishment by pre-interpreting that it was not intended to extend to such persons for so the priviledge is not against law but besides it or aboue it Yea there are statutes dispensatorie as
that of the pluralitie and non recidencie which the Archbishop of Canterbury limits by his approbation Eccl. Anglicanae Canon 41. And priviledges must necessarily bee where there are multitudes of statutes which be so strict in point of injunction as if the makers of them had not considered that politique lawes must be made with respect to morall possibilitie as what men may doe and yet the punishment of their transgression is not expressed but left to the pleasure or displeasure of the King But these are not the priviledges that the Kings royall prerogatiue doth grant as immunities and impunities for then the lawes should bee onely punitine if there were onely vse of protections and pardons but as lawes are also remuneratiue so Princes haue power to reward after a priviledging manner and chiefly in our Kingdome where it seemes to be on purpose omitted by the written lawes and left to the Kings pleasure and power especially concerning Ecclesiasticall persons who haue most neede of them and may now as freely enjoy them as any other persons For though heretofore it was prejudiciall to our Kings to grant priviledges to all Ecclesiasticall persons when they were so encreased in multitudes and overgrowne in magnitude for the whole Kingdome and the Popes would confirme them as irrevocable yet now they are but few in number and small in power and the King may call them in when hee pleases This want of these priviledges hath beene the cause of much evill in the Church and the more they are impeached by those that professe themselues the maintainers of the Kings peace lawes and royall prerogatiue the more will the state Ecclesiasticall runne to ruine And they are much infringed in our Vniversities which I am forced to complaine of with feare lest that fall out which happened to the Vniversitie of Prague which was vtterly ruined by Charles the fift taking the priviledges away at Don Leâ—is desire Whereas Francis the first of France fearing and favouring the Vniversitie of Paris restored all the priviledges which Lewis the eleventh had taken away vpon a just ground of sedition Dino hist 〈◊〉 which hath made it to reviue and flourish ever since But there are some politiques that hold it a needlesse thing to bee any way indulgent to silly Schollers Cujaâ— sent 1. tit as Cujacius saith out of Galen that they expressed weake men vnder the title of scholastici they make meere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iohn a noakes of them but the fault is in themselues according to the French Proverbe Qui se fait brebis le lâ—up la mange For though the Clergie bee weake of it selfe and tempt the contemners of it to over-top and over-turne it Yet since we haue a pious prudent Prince that is royally ready vpon the first appeale to protect and relieue his poore Clergie we are not to be pittied if we neglect to implore his supreame assistance And thus it is something evident how the honour of the Clergie annexed to the power of order is granted and sustained by the Kings lawes and royall prerogatiue I must now in briefe shew the like of the honour annexed to the power of jurisdiction § 6 The power of jurisdiction which I doe here intend is not that deligated power which is in Bishops Vicars or Officialls nor that power Archdeacons and Deanes enjoy either by custome or priviledge but that ordinary power which is in Bishops To this power of jurisdiction there is honour annexed by the lawes of this land and the Kings royall prerogatiue which I divide as before into revenewes ordinary and priviledges the revenewes are their temporalls and part of the perquisits called the Census Cathedraticus the first of which are given and granted by the Kings royall bounty confirmed by the lawes the other are set downe and approved by the same lawes Bishops temporalls are annexed to their sees by the Kings gift Stanford praerogat cap. 1. and are as it were their Gleab but are indeed their Baronies which they hold of the King in capite and performe services for them and therefore they are as it were wards to the King during the vacancie quae ratione Baroniae as Linwood ad Episcopum spectare possunt Linwood de immunitatib Ecclesiae Duarenus de beneficijs l. 3. c. 11. Dominus Rex custodiam habet as Duarenus sayes of the Kings of France Princeps quà m diu vacat Episcopalis sedes feudorum lege praediorum omnium administrationem suscipit But these temporalls are not to be restored till consecration and so seeme to be annexed to the power of order in Bishops Augustinus de Ancona de potest P. P. quaest 22. Art 9. for their consecration according to the scholasticall Canonists is but perfectio characteris which they at first received when they tooke the order of Priesthood and so seeme not properly annexed to the power of jurisdiction for before consecration vpon election and confirmation they may exercise the power of jurisdiction though not of order Episcopus electus confirmatus potest exercere quae sunt jurisdictionis Panormitan in Decret Ver. Cons §. 6. non quae sunt ordinis Episcopalis ante consecrationem as Othobone vpon Linwood suspendere potest à beneficio non ab officio Linwooâ— de constiâ— Glanvil cap. 10. quia ab officio suspendere est à potestate ordinis ordinaria But Iustice Glanvil seemes to intimate that they were restored when they were but Lords elect because electi ante consecrationem homagia sua facere solent but whether it were de jure or de gratia as the learned in the Common law distinguish I leaue to them to determine and thinke it great happinesse for the Bishops and the great honour of our moderne Kings that they are so fully restored at all since they haue as much power and may pretend as much reason to seise the temporalls into their hands as well as others But our Royall Soveraignes pious Father 1. Iacob set a good example to his Majestie to follow for in the first yeare of his raigne hee enacted a statute to prevent all diminution of Episcopall revenewes though it were to alienate them to the vse of his Crowne yea though it were but in exchange for impropriations a course which was too common in Queene Elizabeths dayes insteed whereof our Kings haue out of royall indulgence given some licences for Mortmaines If this redresse had come before they had beene too much impaired Bishops would not haue desired so many Commendams nor Rectors of Parishes made vse of the statute of pluralitie To their revenewes in these temporalls there are many honourable priviledges annexed as they are Barones So that Bishops haue the priviledges of Barons in the Parliament and that vpon good ground since they hold of the King and performe the services belonging to them Mathew Hen. 2. as Mathew Paris Episcopi de rege tenent in capite Baronias faciunt
omnes consuetudines regis sicut caeteri Barones debent interesse iudiciis regis cum Baronibus Now the Bishops especially since the reformation are ready and willing not onely to take the oath of homage which some denyed heretofore as Thomas Becket and Glanvill who was the chiefe Iustice seemes to countenance it by saying Episcopi consecrati non solent Domino Regi homagium facere de Baroniis suis Glanvil lib. 9. cap. 1. sed fidelitatem The present Clergy I say is not onely ready to take the oath in the old favourable free forme salvo ordine but as it is now more strictly obligatorie by putting in these words in verbo veritatis and leaving out the former Which oath may be taken without any suspicion of Symonie as Panormitan Homagium vel fidelitas ab Episcopo praestari possit citra periculum Symoniae and Cajetaine the learned schooleman doth in this agree with this ancient able Cannonist Cajetan in secund secunde q. 184. art 5. Episcopus legitimè iurare potest Homagium quoddam vel fidelitatem quia nil in isto iuramento continetur circa curam animarum for that is taken in relation to their temporalls which they haue from the Kings favours not in relation to their consecration which they haue from the qualifying grace of God which was well expressed anciently in their stile Dei gratiâ Episcopus and now by providentia divinâ so that seeing they perform the same services they may enjoy the same priviledges with the Barons Now as all priviledges so these that they enjoy common with them are besides and aboue the common course of law For instance as they are Assessors in Parliament they may appeare by Proxie as they are witnesses they may sweare onely Visis Evangeliis verbo sacerdotis as Barons by their honour and when they are at any time Delinquents they should bee tried by their Peeres if they were tried as Bishops and not first degraded and so some haue beene tried vntill one appealed from them to the Pope And good reason in those dayes they had if not now to bee so tried because many of the Bishops of those times were of the Princes of the nobilitie as may be seene in Bishop Godwins Catalogue of Bishops so that when Peeres were Bishops why should not Bishops bee Peeres It seemes in Richard the seconds dayes they were so accounted for when hee did make vp the number of the twelue Peeres of the land he chose Brentingham Bishop of Exeter one of them which I conceiue hee would not haue done if hee had not beene a Peere before and I am the rather perswaded so to thinke because Richard the second extends the statute of Scandalum magnatum to Bishops as well as Dukes 2. Rich Earles and Barons vnder the title of Peeres of the land Besides these priviledges which they haue as they are Barons the Kings of this land haue beene pleased out of their Princely favours to bestow many freedomes vpon them especially on the Archbishop of Canterbury as amongst other ordinary and knowne Stamfoâ— rogat c. one against his Majesties written prerogatiue as that the land held of that Bishop shall not be Ward to the King And I beleeue the high estimation of that See abroad might mooue them to it for they are not onely stiled Primates of all England and Metropolitans Duarenâ— gradibus cap. 9. Laelius Zâ— statu Leg but Patriarches Patriarchae minorum gentium sunt Cantuariensis Aquiliensis Biturgiensis Gradensis and the most lawfull Legats of the Apostolicall See Legati nati dignitas Archiepiscopatui Cantuariensi Remensi Eboracensi Pisano annexa est This forraine respect might mooue them more particularly to honour them though they haue alwayes most highly favoured Bishops in generall in somuch that they haue made them not onely á sacris but à secretis which is safe for a King and no distraction to a Bishop in his calling Lipsius Aâ— 3. Polit. with Lipsius limitation interesse eos posse imò debere sed rarenter cùm de rebus planè seriis agitur quae tangunt vniversâ—â— statum then should not Princes need to forbid Bishops the Court without they were sent for as Baronius saith Iustinian was faine to doe Thus I haue brifely discoursed Baron Aâ— Anno 528 though not fully discovered some thing of the relation betwixt the state Ecclesiasticall and the Civill which I haue done without advising in any thing to an alteration or devising any thing for innovation and with submission to the licence of authority and the judgement of the learned FINIS