sufficient to shew that whatsoever the Canons about this matter had been before the Statutes of H. 8. and Reformation of Religion that soon followed and the Statutes thereupon the nature of the crime and the whole current of the Laws about it are altered So that had this Office been given to a Clerk and not to a Layman yet as the Laws of England now are it could not have been Simony although the Lessee had exercised by virtue of his Deputation all those Functions and that Jurisdiction which the Ancient Canons called Spiritual For by many Statues made in the Reigns of H. 8. Ed. 6. and the Queen those Powers and Jurisdictions are made Temporal and so no longer of that nature which could render the Contract about them liable to the imputation of Simony which cannot be committed but when that which is sold is Spiritual The 26 H. 8. 1. Gives the Kings of this Realm full Power and Authority to Visit Redress Repress Reform Order Correct Restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended any Usage Custom Foreign Laws Foreign Authority Prescription to the contrary notwithstanding Also the 37 H. 8. 17. Declares the same Power to be in the King and to exercise all manner of Jurisdictions commonly called Ecclesiastical Jurisdiction And that the Power the Pope claimeth is directly repugnant to your Majesty of Supream Head of the Church and Prerogative Royal your Grace being a Layman and that the Archbishops Bishops Archdeacons c. have no manner of Jurisdiction Ecclesiastical but by under and from your Royal Majesty Some evil disposed Persons little regard the Proceedings and censures Ecclesiastical made by your Highness and Vicegerent Officials Commissaries Judges and Visitors being also Lay and Married Men and think them of little or none effect Forasmuch as your Majesty hath all Power by Scripture to hear and determine all manner of Causes Ecclesiastical and correct Vice and Sin whatsoever and to all such Persons as your Majesty shall appoint thereunto Be it Enacted That Doctors of Law may lawfully execute and exercise all manner of Jurisdiction Ecclesiastical and all censures and coertions Albeit they be Lay or Married Men. 1. Ed. 6. 2. Affirms all Authority of Jurisdiction Spiritual and Temporal is derived and deducted from the King's Majesty And all Courts Ecclesiastical are kept by no other Power or Authority either Foreign or within the Realm but by the Authority of his most Excellent Majesty All which Statutes among many more were repealed by Queen Mary being contrary to the Doctrine and Interest of the Romish Church who holds for the most part all these Jurisdictions to be of Divine Right and their censures to be Sacerdotal and the Power Ecclesiastical to be Ex sacrorum Canonum dispositione as the Popish Clergy speak in their submission to Cardinal Pool But the Reformed Protestants speak quite otherwise as Dr. Sanderson doth who saith of the Exterior Jurisdiction it is not from God but from the King wholly and entirely from him as the sole Fountain of all exterior Jurisdiction Spiritual or Temporal and consequently not of Divine Right So saith that Bishop for indeed if these Jurisdictions were of Divine Right they could not be deputed to others but the exercise must be limited to the Persons alone in whom such a right is inherent One Statute therefore saith well They are called Spiritual not that they are so it is Popery to Affirm it and a virtual denying the Kings Supremacy and renouncing the Oath of it and a Lopping from the Crown one of the principal Branches of its Prerogative preheminence in all Causes Which the King can never have if exterior Jurisdiction be Spiritual from God and the Pope not from the Crown The Book of an Anonymous Author called Episcopal Inheritance saith 't is a Popish Yenet to Affirm the Ecclesiastical Jurisdiction to be distinct from the Civil which Bellarmine asserts to set the Pope above Kings and to exempt the Clergy from the secular Powers In Queen Elizabeths Reign this Power is Affirmed to be in the Crown and 't is Enacted That all Spiritual or Ecclesiastical Power or Authority for the Visitation of the Ecclesiastical State c. Be united and annexed for ever to the Imperial Crown of this Realm But the Canons Affirm it to be in the Pope as a Spiritual Head and have therefore called it a Spiritual Power which being now by these Statutes reduced to its true Original must be no longer Spiritual but Temporal for the King hath it as a Layman saith the 37 H. 8. 17. And may invest Laymen with it who are no ways capable to give or receive it if it were Spiritual So that whatever it was heretofore when it came from Rome it is now Temporal and a part of the Kings Temporal Jurisdiction as Impropriate Parsonages and Vicarages become Temporal Things and Lay-fees now they are appropriate to Lay-men which before were Ecclesiastical and Spiritual And so the nature of such Jurisdictions as of the Benefices is altered with the alteration of the Tenure So it would have been Simony to have sold the Six and the Sixty Clerks places in Chancery when they were all Clergy Men or the Advocates and Proctors of the Commons when they were all bound to be Clerks which made Altissiodorensis and Aquinus say it was Simony for the Advocate to take Fees for pleading but now they are all Laymen there is no colour for such a censure There is yet remaining one and a very strong Argument that letting a Jurisdiction cannot be Simony by the Laws of England and it is this Neither that Canon of Yours nor that of Lateran in the body of the Canon Law nor any Gloss nor Commentator upon them is Law with us in England 'T is true that those Canons do not call it Simony nor punish it as Simony but if they did I Affirm they are nothing to the Case being not Law in our Church and so concerns us no more than the Laws of Coufutius or Japan 'T is almost unaccountable what Interest those Men would serve who have contended earnestly that all the Popes Laws are in force with us I know none but that of Doctors Commons who if they had so large a Field to expatiate in would have all Mens Estates and Reputations in their own Power But it is most certain that no part of the Canon Law is in force in England but what hath been received and used here not as the Popes Law but as made part of the Kings Ecclesiastical Laws by custom usage and consent Upon which conditions the Laws of all France might have been ours as well as those only of Oleron This is plain by our Statutes and it is a Premunire to defend and maintain those Canons or that shall directly or indirectly put in ure or execute any thing for the Extolling Advancing setting forth maintenance or defence of any such pretended or usurped Jurisdiction Power Preâ—eminence
or Authority or any part thereof The Second Offence is Preminure by the Statute of that Queen Now there cannot be an higher Offence against both the Statutes cited in the Margen than introducing Foreign Canons and judging the Causes of the King's Subjects by them utterly refusing to proceed by Canons made and used within the Realm as hath been done in this Cause Mr. Bagshaw in his Speech concerning the Premunire saith a Premunire was against Cardinal Wolsey and he was attainted in it though he had the King's Commission for what he did Quia ipse intendebat antiquissimas Angliae leges subvertere enervare universumque regnum Angliae legibus civilibus earundem legum Canonibus in perpetuum subjugare And for this he forfeited all his Goods and Chattels to the King White-Hall Hampton-Court Christ Church c. If it were not for these Statutes of Premunire there would be no quiet to the King's Subjects as Chancellor Audely told Gardner Bishop of Winton Those Laws of the Pope we have no more to do with than his Religion which yet by a Corrupt Interest have been partly maintained by those perhaps who hope his Power may sometime return where his Canons so much prevail It is indeed an unaccountable Boldness for any Judge to give sentence in a Cause upon Popish Canons never used or put in practise in England as hath been done in this Case but it must be remembred it was done when Popery began to rule us and he was most countenanced who could most cunningly introduce it one and that a very subtle Method being to bring in force again all the Pontificial Canons which the Reformation had Abdicated For this reason all the Popish Judges and those that were eminently Popishly affected would never consent to a Prohibition upon this suggestion though it was thrice attempted That it was no Simony by any Law or Canon that ever was used or in force in England though the suggestion be most certainly true and relevant That it is true I affirm because there never was any such Cause before heard in England nor any Sentence in it no nor is there any decision of this Cause to be found in any of the numerous Rotaes of all Christendom There is no instance before neither in England nor in the whole World of any hearing wherein it hath been judicially pronounced Simony Therefore the suggestion must be relevant as may be seen by the Statutes before cited for those Canons on which the Sentence is grounded are no Laws in England Suppose a Man was Libelled in the Court Christian for Heresy they will proceed because it is an Ecclesiastical Crime and give sentence It is true that by the 1 Eliz. if it be not such as hath been declared Heresy by the Four First General Councels they ought not but the Court will not hear it Whether must the Client go but to the Temporal Judges who are to explain and vindicate that Statute and enquire whether it be Heresy within that Statute or no and whether the Canons about Heresy by which the Court proceeds do not abate by virtue of that Statute In this Case the Reverend Judges may and let me speak with humble submission ought to enquire whether the Court do not intrench upon the 25 H. 8. 21 c. That Enacts no Canons shall be used but what have been received and if the Court Christian put in ure such Canons they are to be restrain'd else these several Temporal Laws were made in vain that have abolished such Foreign Canons It seems to me the strongest plea in the World to alledge That this Cause is pronounced to be Simony by Canons that were never in force in England or if they were they are abrogate and obsolete and of this I am sure none but the Temporal Courts are the proper Judges For if the Court Christian be allowed to make use of what Pontificial Laws they please there is no Bishop or Clergyman whom they cannot deprive for this very Crime in Instances never yet heard of by Englishmen Godolphin takes notice how much Simony in England differs from that of Rome and saith The Canon Law in this point of Simony is of far wider extent then the practice with us He enumerates Nine Cases and concludes thus with divers other Questions in the Canon Law relating to this subject the solutions whereof are not of any moment to us who are out of the Pope's Diocess I shall add some other Cases out of the Body of the Canon Law and Gloss or approved Authors few whereof are Simony in England though they are so at Rome or Bononia Viz. Buying Reliques Holy Roods Agnus Dei's Holy Bread or Water Chrism Consecrated Beads and Candles all Garments of the Mass-Priests Corporals and other Vests of the Altar Consecrated Clouts Bells Chalices or Crucifixes if you give more than the matter is worth To become a Monk with hopes to be Abbot To hope for a Bishoprick or Benefice or to promote any Affairs of the Patron in expectation of the next Advowson or to get a promise of it To observe Canonical Hours to get the Canonical Portion To agree what Salary you shall have for serving a Cure was Anciently Simony if not still To ask a Benefice with Cure of Souls for an unworthy Person or for your self though never so fit To confer a Benefice upon condition the Clerk do you no mischief A Bishop so much as ask for a Bishoprick For a Divinity Reader or Catechist to take any thing of their Auditors if the Lectures are endowed To teach School for reward if the Master has a Prebend or Salary from the Church as they have or ought in all Cities by the Canon Law. To take Money for Preaching Lectures or Sermons for a Neighbour Minister or to preach to gain Applause To give Money to another to pray for you For Favour or Affection to reconcile a Penitent or conceal his Crimes or for hatred to repel him To present to a Benefice as a recompence to a Clerks Merits in many cases is Simony To present Kindred or Familiars with any Respect thereto or to gain Honor or Repute To purchase the next Advowson or the Perpetuity if you give more then the Mannor is worth without it To found a Prebend on condition that you may retain it for your Life To buy a Burial Place To take Money for Burials Christnings Marriages or any of the Popish Sacraments that confer Grace To agree to Celebrate for you to morrow if you will for me to day To say Mass hear Confessions give the Sacraments with intention to get by it A Bishop or Prebend to pay any thing for Installation or Bishops to do Homage to the King for their Bishopricks To give Money to the Bishop or
essence of Simony consists in this that something is purchas'd by the priviledge of Orders or to exercise his Orders about This then excludes those who buy such Offices as we treat of since they are Laymen He who takes Money saith Aquinas for the use of a Spiritual Power intelligeretur vendere usum Spiritualis gratiae and therefore it is reputed Simony But where there is no Spiritual Power and no Supernatural Grace made of in the Exercise and Administration of the Purchase the Crime is of another Nature and comes no nearer Simony than Advowtry Panormitan is of the same mind as Redounus Collects from him Est Simonia si potestas aut dignitas habeat in se administrationem exercitium Spiritualis Jurisdictionis Administrationis quale est absolvere confiteri sacerdoti praelato seu judicts a sententia excommunicationis sim If there be a truly Spiritual Power confer'd and used then it is Simony not else Cardinal de Turrecremata on Salvator the Canon so often mentioned saith the common Opinion is That if the Offices mentioned there have a Spirituality annext 't is Simony to sell them else not And he adds so is the Custom and so saith the Archidiaconus and so the Cardinal saith that Canon is to be understood according to Inn. 4. who mentions several Ecclesiastical Offices which is not Simony to Purchase because they are Temporal And Victorian saith He doth find among the Ancients as Altissiodorensis and Aquinas that it is Simony to sell such Offices and cites the Archdeacon of Bononia affirming so also If they have not the care of Souls annext By all these Authorities and Reasons it is evident That if the Jurisdiction that is let out under a Yearly Payment hath not concomitant to it a Power of Order or the Keys which renders none capable of them but Clergymen it is not Simony To all I shall add the Judgment of Two or Three of the Neotericks that it may appear that as this hath been the old received Practise and Opinion of the Canon Lawyers it is so still The First shall be Layman upon the same Canon Salvator of which I again mind the Reader an Archdeacon is one there named thus speaks Though the said Offices are purely Temporal and their Acts and Objects Temporal therefore neither Divine nor Natural Law makes it Simony to sell them because they have a kind of remote habitude and reference to a Spiritual and Supernatural end and are instituted by virtue of a Power given by Christ to his Church therefore to keep a decorum in the Church and to avoid Inconveniencies that would ensue if such Offices were sold the Canons have forbid it tanquam Simonia as Caietan Victoria Panormitan and Suarez acknowledge and he proceeds thus Quamvis aliqui negant ejusmodi Officia si spiritualem functionem non habent in laitum etiam cadere possint materiam Simoniae esse Videre est apud Innocentium c. I. Ne prael Sylo v. Simonia q. 13. dicto 7. then he subjoyns Illud vero certum est licet ipsa Officia secundum probabiliorem sacris cannonibus conformiorem sententiam vendi non possint ipsas tamen Officiorum functiones the exact Case utpote mere temporales sine ullâ Simoniae suspicione aestimari pro mercede seu pretio propriè dicto vendi vel potius locari posse sicuti notavit Suarez Where is as clear a resolution as any Words can contain that it is not Simony nor any color of Simony to let out a Surrogation reserving part of the Profits even though the Patentee were a Clergyman Martin Bonaâ—ina Doctor of both Laws and Count of the Empire a great Canonist and Casuist rekons-up the species of Simony and saith That the Decrees in the Canon Si quis prohibiting selling Ecclesiastical Offices intends only Spiritual And proceeds to enquire whether selling the Functiones i. e. a Surrogation or Deputation of an Ecclesiastical Judge mentioned with many others in the Canon Salvator be any sort of Simony at least malum prohibitum and so Ecclesiastical Simony but concludes negatively Quia sunt opera mere corporalia pretio aestimabilia nec jure Ecclesiastico vendi prohibentur quanquam ipsa Officia vendi prohibeantur And in Qu. 17. He enquires whether it be Simony to give Money for Acts of exterior Jurisdiction and denies it because he who buys it Exercises no Spiritual Jurisdiction Ut sic sed quatenus continet Politicam Temporalem Lessius saith Officia vero 〈◊〉 per laicos exertâ—â—o solunt vendere simoniacum non est quanquam turpe esse videatur tale lucrim praeserâ—im si Officio coniuncta sit Jurisdictio and he there speaks of the Offices in the Canon Salvator so frequently here cited Here is then the Case A Jurisdiction granted to all Lay-man who could not exercise the Spiritual part of it if any such had been because not in Orders and so there could be no Simony in the Lessor or Lessee because the Jurisdiction was wholly Temporal the Object Temporal the Subject Temporal also Wherein that I be more clear and instructive I shall consider what kind of Power this is that is invested in a Lay-man by such a Patent According to Bellarmine Ecclesiastical Power is either of Order or Jurisdiction That of Order is to perswade or incite the willing by the word and Sacraments instructions and perswasions and is Sacerdotal the same which all Priests have The other is a Power of Jurisdiction which though Bellarmine and others divide into Internal and External I see no ground for the Dichotomy and can find nothing Internal but what belongs to Order only which is jure divino only some part of this Power of Jurisdiction is reserved to Bishops only and the rest communicable others by them or the Law. If any will be more critical and find out some Acts of Internal Power besides that of Order yet that used in Christian Courts and consistories wherein Men are compelled to their Duties by Process and censures must be meerly External and is so acknowledged to be by most Writers and fully evinced by our own Writers about the Kings Supremacy against Bellarmine and Becanus c. Of this sort is the Power delegated by an Archdeacon to a Layman as Dr. Cosens recounts it The Archdeacons Office is to take care the Churches and their utensils be repaired and to reform excesses in the Clergy to acquaint the ordinary with what is amiss and induct Clerks to Benefices and for Jurisdiction it is according to usage To keep Courts of Instance and Office and grant Wills and Administrations So he In all which there is no Spiritual Act included And nothing to be done that requires the use of the Keys or flows from the Power of Order But all these mentioned the Church Wardens or the promoters or the Court Leet or a Layman may exercise as well