or wasted and therefore could not maintain the Bishop conveniently the Metropolitan with the Bishops assembled in Councel gave two or more to one Bishop and these Cities were called Vnited as likewise on the contrary when the number of People encreased and that one man only could not supply all one Cure became divided into two yea unto these present times these Methods are Commendably used which are for the Service of God for Spiritual Benefit and for conveniency of the People But after they proceeded to make unions also for the Conveniency of some Pious Place by which means some Benefices became united to some Bishoprick or to some Monastery or to some poor Hospital by virtue of which union the Party Beneficyed seems indeed to have two Benefices but in truth he hath but one Humane subtilty invented being willing to give two incompatible Benefices to one Person to unite the one unto the other during his Life N. 148. so that giving him the Principal the United was also given by Consequence by which means it saves very well the Law of having but one Benefice in appearance but in the Existence there is nothing but the observance of th words with Transgression of the sense The Jurisconsults call it the Fraud of the Law This served also that they might give a Cured Benefice to a young striplin or boy or to any other illiterate Person and without being obliged to receive Sacred Orders by uniting the Cured Benefice to a single one during Life and Confering the single one in Title the Beneficyary remained the Curates Patron also and the words of the Law were very well observed But the Power of Vniting Benefices for Life was never granted to the Bishops for any Cause whatever but reserved to the Pope of Rome only Some Lawyers call it an Vnion in the Name but in Fact it is a Relaxation of the Law and they hold it for Damnable wherefore also in some Kingdoms it hath been prohibited It was long used by the Roman Court N. 149. now 't is no more in use no more than many other Cantelous things not to call them Frauds like these which speak too Legally for the Causes as shall be declared when we come to our times The Commendum had also a good Antient Institution Commendums for when an Elective Benefice became Vacant either Bishoprick Abbey or else a Living which was Jus Patronatus for which the Ordinary out of some Respect could not provide immediately the care whereof was recommended by the Superior to some worthy Person until Provision should be made nevertheless that Person had not Power to make use of the Incoms but only to Govern them and for this an Excellent man was chosen who usually was a Benefic'd man to whom the recommended Cure was a burden with which he was to be contented for the Church service only This could not be called N. 150. having a Benefice recommended unto him but very improperly and therefore in Reality he had not two Benefices although to make no difficulty of speech there arose a Maxime amongst the Canonists that a man might have two Benefices the one in Title the other in Commendum which Commendum at first lasted but until Provision were made afterwards they Commended for a good while which sometimes was long enough wherefore the Pope of Rome forbad the Bishops from Commending for above six months not making the Rule for himself but by a Court Style the Commendum contracted a little Custom not altogether Commendable which was that when the Pope had a mind to give any man a Benefice it could not be done either for want of Age or because the Benefice was Monacal and the Person Secular or for some other respect he Commended it to him so long that he might acquire the necessary qualities for to have the Title of it But finally about the year 1350 all Respects being laid aside the Popes holding the other Bishops strictly to the Term of six months N. 151. they Proceeded to give the Commendum for Life which if it be given to one who hath in Title another Incompatible Benefice he observes very well the words of the Law that two Benefices cannot be given but one in Title and the other in Commendum but the sense is defrauded because that which is Commendatory for Life as touching the Profits is like unto the Titular also giving a Benefice in Commendum to one who hath not the qualities required by the Canons doth not disagree with the Words thereof but 't is given to him in Deed and not given to him in Words the Commendums of Bishopricks and other Benefices are almost out of use in Italy There remains some Abbeys for the Causes which in our times shall be declared By the means abovesaid the Popes drew to themselves great share of the Beneficial Disposals in all the Christian Kingdoms of the West but in the Eastern Churches he was never suffered to dispose of an Atome not only in the last Ages of that Empire when the Greeks were totally divided N. 152. but likewise in the first Ages also when they were united into a Body except that in Syria and in Greece in the times and in the places which were under the Dominion of the French and of the Venetians But the Popes Letters which disposed of Benefices in manner abovesaid although they were indeed for the most part obey'd yet nevertheless not without some Complaint and Murmuring putting it often to dispute whether the Pope could do this or that In Italy none opposed the Pope unless some Pious man for Respect of Conscience and for the Service of God it being besides profitable to the Italians for such were the Roman Courtiers who by means of the Popes ample Authority received Incoms from Beyond the Alps. In Spain the Prudence of that Nation in their Practice deluded the Arts of the Court. In England as in a Region where the Benefices were many and Rich the Roman Courtiers made great gains wherefore in the year 1232 a League was made in that Kingdom N. 153. between the English Clergy-men and the Souldiers against the Roman Clergy-men Beneficed in that Island who were spoyled of their Goods and Incoms The Pope Commanded the King under pain of Excommunication that he should Chastize or Punish and Persecute them with Temporal Arms and that the Prelates should Excommunicate them But they were found to be so numerous that the King durst not meddle with them neither did the Prelates dare to make use of their Spiritual Weapons The Affairs remained quiet for a few years whereupon Pope Innocent the 4th a Genoése took fresh Courage and sent one Martin his Kinsman by whose means he renew'd the Fashions of the Court upon which the English had Recourse to the King Complaining that the Italians got Possession of all Benefices The King Banished Martin from the Kingdom and causing an Account to be made of how much the Pope
drew out of England he found it to be equal to his own Revenue which is sixty thousand Marks The King proposed some of these Differences to the Council at Lions making Complaint of the abovesaid grievances whereto the Pope answered the Council was not Assembled for that purpose and that it was no time to harken to it In the said City of Lions during the time of the Council N. 154. the Pope would have given to his Kinsmen some Prebendaries of those Churches upon which there was a great Commotion in the City and the Pope had notice given him that they should be thrown into the Rhone wherefore the Pope sent them away privately Rhodano For all this the Court left not off its Designs but in the year 1253 the same Pope Commanded Robert Bishop of Lincoln a man in those times Famous in Doctrine and in Goodness that he should confer a certain Benefice upon the Genoése against the Canons which appearing inconvenient and unjust to the Bishop he answered the Pope that he Honour'd Apostolical Commands Conformable to Apostolical Doctrine wherefore that non obstantibus is a Deluge of inconstancy a Breach of Faith a disturbance of the quietness of Christendom that it is a grievous Sin to defraud the Sheep of their Pasture that the Apostolical See had all Power to Edification none to destroy N. 155. This Answer received the Pope grew wroth exceedingly But Cardinal Egidius a Spaniard being a Prudent man endeavour'd to Mitigate him representing to him that to proceed against a man of such Reputation for a cause so abhorr'd by the World could not bring forth a good Effect But whilst the Pope studyed to shew his Resentment Robert fell sick and to the end of his Life held the same Reasons and dyed with an Opinion of Holyness and 't was fam'd that he wrought Miracles The Pope hearing of his Death caused a Process to be formed for the King to dis-inter the dead mans Corps But the night following in a Vision or in a Dream he had Robert in Pontifical Robes who Rebuked him for persecuting his memory and smote him on the Flank with the But-end of his Crosier-Staff The Pope awoke with an excessive Pain in that Place which afflicted him unto his Death that happened within a short time after In the year 1258 Alexander the 4th Excommunicated the Arch-Bishop of York for the like Cause who persevering in his Deliberation N. 156. endured the Persecution with much Patience and drawing neer to his Death wrote a very Prudent Letter to the Pape exhorting him to imitate his Holy Predecessors and to take away the Dammageable Novelties from the Church and from his own Soul He dyed with the Opinion of a Saint and a Martyr In these times 't was likewise necessary in France to make a Provision which I shall relate after having given notice that for these and for other Impediments which the Princes and the Bishops opposed against the endeavours of the Court which never thought of giving over For Clement the 4th in the year 1266 resolved to lay the Foundations whereby he or his Successors might declare themselves to be absolute Patrons in all the Collations of Benefices throughout the World and remove the necessity of finding out Wayes and Arts to draw the Collations unto Rome and made a Bull which concluded nothing else but the Reservation of the Vacanti in Curia saying that the Collationing of them by an Antient Custom is reserved to the Pope and therefore he approved of this Custom and wil'd it to be observed N. 157. But to conclude this alone So much an Hyppothetical Premium can do in saying that although the plenary Disposal of all Benefices Premio Hippotetico belongs to the Pope of Rome so that he may not only confer them when they become Vacant but he may also before Vacancy grant a Right for the acquiring of them Nevertheless the Antient Custom hath more especially reserved the Vacanti in Curia Wherefore we approve of that Custom If the Pope had made a concluding Edict that the Disposal of all Benefices belonged to him the World would have stir'd in it and as well the Clergy-men as Princes and other Lay-Patrons would have declared their Reasons But this Proposition being put into a Conditional without a Conclusion went on easily without any notice taken of how much it might Import But two years after that is in the year 1268 without having any Respect unto this Bull N. 158. St. Lewis King of France seeing that the Provisions made by the Queen Regent his Mother during his Minority and during his Absence in the Holy Land were not sufficient to remove the Confusions introduced in the matter of Benefices Pragmatic Sanction made his famous Pragmatick wherein he Commanded that Cathedral Churches should have their Elections Free and the Monasteries likewise that all other Benefices should be given according to the Disposition of the Law and that no Imposition of the Court of Rome could be levied upon Benefices without his Consent and the Churches of his Kingdom This Holy Kings going into Africa against the Mores and his Death which happened in the year 1270 and the need the House of Anjou had of the Popes Favour to settle his Kingdom in Naples and to recover that of Sicily and the Power which the Pope granted to the King of imposing Tythes under Pretext of the War of the Holy Land were cause that the French easily permitted the Court of Rome to regain the same Authority N. 159. whereupon in the year 1398 Boniface the 8th placed the Constitution of Clement in the Decretals and made that That which was said Hyppothetically and Incidentally became the Principal and to give it the greater Authority he exposed under the name of Clement leaving it dubious whether it were the 4th or the 3d. Therefore now in some Copies it is Read the 3d in others the 4th For which cause this Proposition was given to be believed at first i. e. That the plenary Disposal of all Ecclesiastical Benefices belongs to the Pope which is pretended to be meant in a Sense not altogether perverted which is that the Pope should have full Power but yet Regulated by the Laws and by Reason A little after Clement the 5th made void all good understanding by saying that the Pope had not only full Power but also free over all Benefices which freedom is understood by the Canonists Exempt from all Laws and Reason so that he may do all that he pleaseth notwithstanding the Reason or the Interest of whatsoever Church or of Particular Person yea even of a Lay-Patron This Proposition is put into the Bulls upon every occasion N. 160. and there is no Canonist but passeth it for clear yea for an Article of Faith saying that the Pope in the Collation of any Benefice whatever may Concur with the Ordinary and also prevent it and if it so please him he may
were gone to Rome for Beneficyal Causes Three years after the Pragmatica was restored by the same King Sixtus the 4th then opposed him and made an Agreement to destroy it which is still to be found but they would not receive it and the Pragmatica remained Innocent the 8th Alexander the 6th and Julius the 2d used all means to Abolish it but could never Obtain it Finally Leo the 10th made an Agreement with King Francis the First And taken away again by which the Pragmatica was taken away and 't was Ordered that the Power of Choosing Bishops and Abbots should be quite taken away from the Chapters of Cathedral Churches and from the Conventuals but Bishopricks and Abbeys becoming Vacant the King might name a fit Person on whom the Pope was to Confer the Benefice That the Pope of Rome could not give Reversions nor make general or special Reservations but that Benefices becoming Vacant in four Months of the year should be Conferr'd by the Ordinaries on the Graduates of the Vniversities N. 208. and the Vacants in the other eight Months might be freely Conferr'd by the said Ordinaries only that every Pope in his life time may Charge any Collator of Benefices to Confer one according to the disposal of his Holyness in case there are to be Conferr'd between Ten and Fifty and if there be above Fifty or more he may Confer two and although there were many Difficulties in Accepting the Agreement and the University appealed to the next Lawful Councel nevertheless the Authority and the Vtility of King Francis overcame and the Agreement was Proclaimed in France and put in Execution In such manner that after so many Popes from the year 1076 unto 1150 strove by the Excommunicating an infinite number of Persons and by the Death of Innumerable more to take from Princes the Conferring of Bishopricks and giving the Election to the Chapters contrary-wise Pius the 2d with five of his Successors have striven to take the Election from the Chapters of France and give it to the King and Leo the 10th did obtain it at last N. 209. Thus the Alteration of Interests bear along with it the Change and Contrariety of Doctrine Some Speculative men have accounted the Reason of this to be because the Example that the Bishop and the Clergy might Confer may keep alive the Practice and the most general Doctrine of the Church Contrary to the Modern others because it is still more easie to take it out of the hands of a King who may be of a weak Spirit or may stand in need of the Pope than from the Bishops and Clergy King Francis made many Laws besides to regulate the Possessory of Benefices and the Agreement was observed by him but the Execution was interrupted for some years by his Son Henry the 2d when he was in War with Pope Julius the 3d because of Parma wherefore in the year 1550 the King Prohibited that any Provision of the Popes Benefices should be received and Commanded that all should be conferr'd by the Ordinaries but Peace being made all was Composed and the Observance of the Agreement returned But in the year 1560 the States were held at Orleans in Charles the 9th's Minority where the Collations of Benefices were regulated N. 210. and many things abolished which were Contained in the Agreement Great Confusions and Wars happened in the Kingdom and the Cardinal of Ferrara was sent Legate into France who Obtained that the Ordinances of Orleans should be superseded with a Promise that the Pope within a short time should provide against the Abuses for which the Ordinances were made of which nothing was done afterwards so that now the Concordate remains Thus went the Affairs in Germany and in France But the State of Italy which we have lately described was greatly altered by the Celebration of the Councel of Trent which made several Decrees on this Matter to provide against the Abuses abovesaid then reigning and although from its beginning which was in the year 1547 it began to attend these Corrections and made many Decrees which were not put in Execution until after the end of it which was Anno. 1563 wherefore it may be said that all the Provisions are to be referr'd unto this time N. 211. 'T was the Intent of this Councel to remedy three things First the Plurality of Benefices Secondly 1 Pluralities 2 Hereditary Succession 3 Absence Hereditary Succession Thirdly the Absence of Beneficiated men and to Prohibit all kind of Plurality 't was Ordained that one although he were a Cardinal could not have more than one Benefice but if that were so small that it might not serve or be sufficient for the Expences of the Beneficyed he might have one more which was therefore to be without Cure of Souls It Prohibited the Commendum's of Benefices Curati ad Vitam which was a Pretence to make a man Obtain two it Ordained also that Monasteries for the future should not be Commended and those that were so till then when they became Vacant should be reduced into a Title It Prohibited also the Vnions ad Vitam which was another pretext of giving divers Benefices under the name of one It Prohibited totally the Regresses and the Accesses to take away Succession It Prohibited also the Coadjutorships with future Succession absolutely excepting in Cathedrals and Monasteries wherein was Admonished N. 212. that they should not be granted by the Pope but for just Causes but the Prohibition is without Effect In the 14 last moneths Residency was treated with some Contention Residency because there was sprung up a Question among the Doctors a little before whether the Residency of Bishops and of other Curates in their Churches were de Jure Divino or Canonick for which cause the Councel was divided in such a manner that in April Anno 1562. a Scrutiny being made of the number of both Parties there 67 found whose Opinion 't was de Jure Divino 33 who opinion'd it to be de Jure Positivo and 30 who were of Opinion that this Point ought not to be decided without first treating with the Pope Of the first number were the Northern men and other cast-off Bishops on the Second and the third the Dependents on the Court. If Residency should have been made de Jure Divino it would follow that the Pope could not have been able to dispence it but that the Authority of the Bishop also would have been de Jure Divino and no man was able to restrain it N. 213. these were things which Squinted at the Depression of the Courts Greatness wherefore the Opinion was Maintained by both Parties with much boldness The Business came to Practices so that after fourteen months Residency was Commanded yet not declared quo Jure the Curate should be Obliged only Penalties were enjoyned upon non-Residents as to other things they were left in their first Estate or Condition but those who were at
treating and speaking follows not that which he is inwardly sensible of The Clerks or Clergy-men are become Administrators of these Goods by Laws which have granted unto Christian Colledges the Power of acquiring Estates N. 227. both by Wills and Donations of those who have bequeathed their Goods and by the Authority which the Church hath given unto the said Clergy in the Canons therefore they are Obliged to Govern and to Dispence these Estates according to the Laws Dispositions Donations and Testamentary Dispositions and according to the Canons and that which might be done Contrary to it cannot be called otherwise than Injustice Injury and Usurpation The Canonists say that the Pope hath most full Power over the Goods and Benefices Ecclesiastical so that he may conjoyn them diminish them erect new ones give them ad nutum Confer them before they become Vacant lay upon them Servitudes Burdens and Pensions and generally that in Beneficial matters the Popes Will is in the stead of Reason or Right This Sufficeth not but they add that the Pope may alter or transform into other Works the Legacies ad Pias Causas and may alter the Disposition of Testators applying that to another which they shall have appointed for a Pious Work and it cannot be denyed that this is the Practice which hath changed all the Government and all the Antient Institutions N. 228. but it remains still in Doubt who does amiss and errs the Antient or the Modern if so much as a Doubt may happen Martin Navarr with some of the more Moderate Canonists limits this Proposition that the Pope may alter the last Wills only restraining when there is a Lawful cause of doing it which otherwise would be to deprive a man of his own and of the Power granted him by the Natural and by the Divine Law coming down also to this Particular that the Pope cannot without Cause give that to one Church which is left unto another therefore how much less unto Persons not called Navarrus saith also that the saying of the Gloss approved by the Canonists That is in Beneficyal Matters the Popes Will is instead and takes the Place of Reason is to be understood only in things which are de Jure Positivo but not in that which cannot be done without disagreeing with Natural and Divine Law And those who give no unlimited Power unto the Pope N. 229. would also exclude the Canons of the Universal Church not to fall into the Absurdity that in a Matter of such Importance the Universal Church should have erred and done amiss and that the Court should do uprightly The said Navarrus adds further that it being said in the Clementines that the Free Disposal of Benefices belongs to the Pope The word Free is or ought to be understood without Licence Leave or Consent and notwithstanding the Contradiction of any man soever but yet without Prejudice of the Third if we should admit of this Exposition as it seems Convenient to be admitted there would be seen a great Opposition to Reservations because they are Prejudicial to the Bishops in the giving of Benefices unto Strangers because it is with Prejudice to those of the Country in whose Favour the Wills are made and it would not be very favourable to the Pretension to have Power or to be able to alter the last Will and Testament being Prejudicial to the Memory of the Deceased I know well that others answer to this that all is true N. 230. when there is no Legitimate Cause but the Point is who shall be Judge of the Lawfulness of the Cause for if it belongs to himself whose Authority is to be restrained 't is as good to give him the Absolute Authority as that which is limited with a Lawful Cause unless the Law be above it Navarrus adds very Notable things saying that in our Age the Opinion of the Jurisconsults which expatiate so much the Papal Power in Beneficyal matters is in much Credit to please those who are Ambitious of many Benefices which they accept as fitted for their Ambition and Covetousness who heard a Divine say Publickly and a Famous Canonist that they would willingly accept of all the Benefices of the Kingdom if the Pope would Bestow them upon them but on the Contrary Pius Quintus told them that the Jurisconsults are wont to attribute more Power than Convenient to the Pope whereto he answered that there are some also which do not Extol but that it behooveth to walk in the middle way having Respect unto Divine and Humane Laws together N. 231. not doing like the Modern Jurisconsults who Magnifie Humane Laws so much that they answer against the Divine However I intend not to Contradict the Opinion which gives so much Power for the Reverence due to the Pope of whom is treated although it Comprehends not how it agrees with Divinity and with Reason I shall only propose some Difficulties which are wont to be Promoted by Writers on such an Opinion which when they shall have resolved truth in this matter will be most clear And first If the Pope hath such an Ample Authority who hath given it him Not Christ because the Authority given by him is only is Spiritual things for loosing and for binding that is for remitting and for retaining of Sins And then the Ecclesiastical Estates are Possessed de Jure Hamano and not Divino and for such it hath been resolved above and therefore he hath not receive this Power from God much less from the Laws of Princes from Testamentary Dispositions N. 232. nor from the Canons of the Churches because all these have given the Administration to the Clergy-men of each Church over the Estates and Benefices thereof and prescribedly also with limited Conditions that they may not be altered therefore he hath it not from these There are no other Patrons in being nor none can have Authority unless granted by these therefore it remains to be Considered from whence and by what other way it hath been given him To this Doubt a second may be added if the Pope hath this Authority what is the Cause that his Predecessors for a Thousand years and more have never Exercized any nor any Antient Doctor nor Councel nor Historian nor Father nor Canon hath so much as made mention of it It cannot be Attributed that there is a necessity for that now which was not in those times because that in the Ages that past between the years 800 and 1100 for 300 years the Disorders were so great throughout all Europe that in Comparison of those N. 233. these at present are Tollerable and indeed no Pope did so much as intrude himself into the Estates of other Churches which had great need of being Governed And after the Popes had begun to interpose themselves in some places until the time of Clement the 4th no man ever pretended to such an Ample and Absolute Power but the said Clement hath not directly published
the same Law and the Jurisconsults say that from thence proceeds the Bondage or the Freedom of Estates in Land from whence also Dominion is derived N. 79. It would be a great Contradiction to say that the Church should have a Possession Jure Vaneto by the Right or Law of Venice which should have a Liberty alio Jure by another Law But as touching Tythes there are two opinions one of the Canonists Tythes the other of the Divines and of the Canonists who together study Divine Scripture The Canonists say that Tythes are Jure Divino because in the old Testament God gave Tythe unto the Levites as the Holy Scripture Relates and 't is no wonder that they say so because they are not versed in the Readings of the Sacred Books their Profession not being to understand the Mysteries of Christian Religion which is that God gave by Moses to the Jewish People the Law which as to Ceremonial and Judicial things was proper to that Nation until the coming of Christ who was to take away the obligatory Power of it so that the Law of Tythes is indeed Mosaically Divine but not a Law Naturally Divine N. 80. nor Christian and it obliged only that People at that time now it obligeth none He that Governs a Common Wealth may make Laws like unto those but they shall not oblige as Divine neither ought they to be called such but Civil Laws of the Prince who Constitutes them there was a Mosaical Divine Law that a Blasphemer should be put to Death this obligeth us not now neither doth he sin who kills him not and the Prince may impose a Capital punishment for Blasphemy and it would be just and ought to be observed but it should not therefore be called a Divine Law although God gave it formerly to the Hebrew People but a Politick Law of the Prince In these and in many other occurrences where these men alledge the old Scripture for their Interest subjoyning thereunto that it is de Jure Divino it behooveth to distinguish their Equivocation that That which is de Jure Divino Natural or Christian obligeth us but that which is de Jure Divino Mosaical obligeth us not and he that hath a Government making a Statute like unto that it is de Jure Humano I cannot forbear saying N. 81. that they deal not in this manner out of ignorance Jus Divinum but to deceive the incautelous and to strengthen their own Affairs by and with the Name of Jus Divinum and to give it Reputation but they may be convinced here and have their mouths stopt In this same Contest of the Scripture where God commands Tythe should be given to the Levites Tyther he Commands also that they should not Possess any Land and that they should be contented with the Tythes If by this Precept the People be de Jure Divino obliged to give them the Tythes they shall be obliged to have no Possessions But besides God Commanded the Tythes only of the Fruits of the Earth and the Canon Laws say they must be paid also out of Merchandize out of the Militia out of Hunting and out of whatsoever Handy-work whereby gain is made If God gave the Hebrew People Command for Predial Tythes only they are forced to say the Personal is not commanded but by humane Law N. 82. The Divines for I name never a one in Particular because none is excluded and many Canonists with them say unanimously it is a Precept of Divine natural Law that the Minister of Religion should live by his Office which he affords by serving the People in Divine things and that it is a special Precept of Christ our Lord in the Gospel that the Minister who serves the People in Preaching the Word of God and in Ecclesiastical Ministry should be furnished with a Livelyhood in what quantity is not determined because that according to the number of Persons and according to the Condition of Places and of Times abounding at one time and wanting at another so that allowing a share to the Minister of Christ is de Jure Divino But that this share should be a Tenth or a Twentyeth or a greater or a lesser Proportion this is established by humane Law or by Custom which are of equal value And when 't is Read in any Decretals that God hath instituted Tythe or that the Tythe is de Jure Divino N. 83. they mean a part determined for one undetermined meaning Tythe to be that share which is requisite and necessary or else that God hath instituted Tythe in the old Testament after the manner that the Law hath instituted the same in the new Testament Wherefore we may generally say that Ecclesiastical Estates of whatsoever kind they be are all under the Dominion of him who is Patron thereof and are possessed by humane Laws Neither doth any man make a doubt concerning this undetermined share which is requisite or due by a Divine Natural and Evangelical Law because as Lawyers observe well there is a difference in a thing being due or requisite and in having a Dominion the thing whereof one hath a Dominion may be claimed directly in Judicature or Judgment as they say Actione Rei Vindicationis neither is he to be satisfied by giving him an equal value but the Creditor only may by personal Action require his Debt the Debtor being obliged to give him so much but this man no more than that By this Resolution it remains also easily decided whether Benefices or Livings are de Jure Divino N. 84. or de Jure Positivo because Estates in Land and Tythes being Possessed de Jure Humano the Benefices also being grounded upon them will have the Power of the same Law besides one may certifie ones self hereof more easily from the things above said For if the Church hath been so many years with Estates enjoy'd in Common and not divided into Benefices as is above-mentioned it is an evident thing that Benefices have been Created by men in progress of time and in this all agree I will not enlarge my self further only shall say that if these Considerations seem somewhat subtil yet they are necessary as the following matters shall declare From the Resolution of the first Question it would be clear what to Answer unto the second by him that hath the Dominion of Church Goods I mean of Estates in Land because of Fruits shall be spoken of in its place which is the fourth Question for if they be Possessed by Humane Laws N. 85. there remains but to see unto whom these Laws hath granted them Some say that these Goods are from God and without doubt they say true because Divine Scripture sayes plainly all the Earth is the Lords and the fulness thereof But in this manner all things are from God and no more these Goods than any others the Divine is a kind of Vniversal Dominion another Dominion hath every Prince
who is Supream in his State which according to Seneca may be called Dominion of Empire or else according to the Doctrine of the Jurisconsults Dominion of Protection and of Jurisdiction Another each private man hath which is the Dominion of Propriety whereof we speak and wherein we now make enquiry one cannot say that God hath the universal Dominion of all things but that he hath therewith the Propriety of those Goods as the King hath the universal in all the Kingdom and nevertheless he possesseth in Private and hath the Propriety of that Portion which belongs to his own House N. 86. Wherefore one may make an Addition to the universal Dominion of the Prince with the Particular of Propriety whereby it encreaseth and is Augmented but Gods Dominion hath an universality so excellent and so infinite that it can receive no Addition and repugneth to be particularized as it also repugneth to be Communicated to any Creature whatsoever therefore no man can say God being Master of these Goods I who have the same Tribunal the same Consistory and the same Court as he I am Master also but rather he is no less a Servant of whomsoever is least Notwithstanding others vending or uttering freely without fear say Pope Dispensator not Dominus that the Pope is Master and hath the Dominion and this they prove by the Decretal of Clement the 4th that the Plenary Disposition of all Benefices belongs to them St. Thomas opposeth himself to this opinion in saying that the Pope indeed may call himself chief Dispensator but in no wise may he be called either Master or Possessor N. 87. which Doctrine Cardinal Gaetanus explaineth adding that the Pope cannot give nor in any wise dispose of Ecclesiastical Goods but only do with them as much as may be done being upon the Term of Dispensator And Gaetanus's Reason is very clear and Efficacious these Goods were at first belonging to a Master who hath transferred his Dominion by Donation or by Testament but none of these had ever Intention to give or leave to the Pope therefore the Dominion hath not passed unto him wherefore the same Gaetanus and Adrian 6th Pope say that the Dominion of Estates is in the Church that is in Generality or Vniversality of the Faithful of the place to which the Goods or Estates is left so that the Dominion of the Goods of the Roman Church is in the Universality of the Romans 'T is known by all that Universality in Right is like a Person capable of Possessing in which manner it is said such a thing is common to the City that is no mans in particular but all mens together They leave many Wills after this manner N. 88. as I leave to the School of St. Rocco Rocco to the Monastery of the Fryers c. This Doctrine is very well Confirmed by the Antient Custom of the Church and by the manner of speaking of the Canons There is no doubt that if they were to denominate Estates in Land by the name of a Person they would denominate it from him who hath the Dominion but all the Canons and the Antient Custom calls them Church Lands or Goods therefore she hath the Dominion of them neither have those any other opinion who say these Goods are Christs because all the Christian Churches from most Antient times have been denominated not only from the name of the City but also from the name of him who hath been the first and the most famous Bishop therein as the Roman is called St. Peters that of Alexandria St. Marks that of Ravenna St. Apollinare's whereupon the Lands of those Churches took the name of the same Saints and the Lands of the Roman Church are called St. Peters wherefore these kind of Phrases are Read amongst all the Antient Writers N. 89. viz. St. Peters Patrimony St. Peters Lands the Possessions of St. Peter the Patrimony of St. Apollinare the Revenue of St. Apollinare c. And because Christ is universal Head and Protector of all Churches that which belongs to the universal Church and to any particular Church is called Christs Patrimony Christs Goods or Lands c. which signifies so much as belonging to the Church whose Head Christ is Not otherwise that the Lands of the Republick of Venice are called St. Marks that is belonging to that Republick which bears St Marks name And truly that universality of the Church was Mistress of all that was gained when the Clergy-men in each Diocess were in Common because all Donations and all Testaments were made thereunto Certain it is that these Estates were not neither could they be Purchased but by him to whom the Law granted the Power of Purchasing but the Laws of Constantine granted that Donations might be made to the Christian Colledges N. 90. that is to the universality of the Christians which were in Cities then the Dominion belonged to those Colledges but after the divisions were made and the Benefices Instituted Legacies or Donations were made unto particular Churches or rather for the most part for some particular Pious work in those Churches wherefore it cannot be said who is the Master of any thing whatsoever without seeing the Bequeathing of the Wills and of the Donors whereto we being to speak fundamentally we can say no more but that Prelates and other Clergy-men are the Governors Administrators and Dispensators of the Church Goods to do therewith according to the Bequest of the Donor or the Leaver and not otherwise and that Person is Master either Particular or General in favour of whom the Donation or the Legacy was made Wherefore also every Rector of a Church ought to see diligently after the obligations left him to perform and if it be done otherwise it must be imputed to humane Imperfection no man can be perswaded that through length of time N. 91. he may have a Prescription because that Presupposeth a good Faith which never was in any man every one knowing in his Conscience that those goods were not left to be done with as they do But in whose Dominion shall those Church-Lands be whose Institution is not known The Natural and the Civil Law is that in those whose private Patron or Master hath totally failed the Community shall Succeed therefore the Church must remain Mistress thereof So that in few words men who are beneficed are Dispensators of the Goods of the Benefices but Master he is not in favour of him who made the Donation or the Will and if it be not known the Church remains Mistress 'T is no obstacle hereunto that there be Princes Laws and Ecclesiastical which forbid Alienation for the Pupill is true Master of his own and yet he cannot Alienate N. 92. Dominion is a Right of doing what one will with a thing when the Law permits which binds some sort of Persons with Conditions who have need of the Government of others such is Vniversity or Community No man ought
also give Authority to whom he thinks fit enabling him in like manner to Concur with the Ordinary or to prevent it as they have since given this Faculty unto Legates with a general Constitution There is nothing more Wonder-worthy in the Consideration of Benefices Election of Ministers belonged to the Faithful than it being as clear as the light at noon day that the Election of Ministers was at first by the Faithful People then it passed unto the Princes after the Christian Faith being received they minded the Affairs of the Church and finally it was reduced unto the Ecclesiastical Order only N. 161. the Seculars being excluded by the Management of Gregory the 7th and his Successors yet there still remained in each Diocess the Election and the Collation of Benefices and of their Offices which since by little and little the Popes of Rome have assumed to themselves by the wayes abovesaid and to be said hereafter Nevertheless the Canonists either out of Animosity or because it is not their Profession to know any thing besides the Decretals have said and do say in our dayes without Respect unto the Notorious Truth which is against it that heretofore the Pope provided all Bishopricks and other Benefices and that he afterwards out of Favour granted the Election to the Chapters and the Collation unto the Bishops it is not to be doubted but one day it ought to be answered in the Articles of our Faith for making a Doctrine to pass into the Church which is so directly contrary to what they caused to be Preached in Former times when Anselmus Bishop of Lucca who wrote three Books against Gilbert the Anti-Pope in favour of the said Gregory the 7th which are still to be found throughout all the second of which by the Authority of the Popes N. 162. of the Holy Fathers of general Councels by the Custom observed from the Apostles time unto his who wrote in the year 1080 Proves that the Election of Bishops by him called Popes belonged to the Clergy and to the People of the same Diocess and that the most Pious Emperors Constantine Constant Valentinianus Theodosius Honorius Carolus Ludovicus and other excellent men for Faith and in Religion never violated such a Custom observed in the Holy Church from the Apostles time and a Constitution of Carolus and Ludovicus Pius being born or Contained in the Chapitolar that Bishops should be elected by the Clergy and by the People of their own Diocess according to the Canons saith that this Constitution is most agreeable to that of the Holy Fathers and no less than if by the Nicene Councel or by any other General Synod it had been Promulgated by the Holy-Ghost through the Mouth of those Emperors where 't is seen that to take the Election out of the Hands of Princes they held for a Tradition that the Contrary of which they are willing now adayes should be Written by the Canonists N. 163. and Believed by us so that of necessity the Canonists must Err or else the Allegations of the Bishop of Lucca have erred And if the Ordination of Bishops in their Diocesses after the manner aforesaid was the Liberty of each one of the Churches as the Fathers and the Councels taught and granted them by our Lord Jesus Christ Let not those talk so disorderly who say the Court hath put all the Churches in Bondage under pretext of defending them their Liberty Seek this time that having spoken in divers Occasions of different wayes of gaining Estates to the Churches I toucht the manner of preserving them which is by Prohibiting all manner of Alienations Alienations a thing Diametrically contrary to that which the Primitive Church observed Wherefore if when 't was Lawful by the Laws of the Prince for the Churches to purchase Estates in Land N. 164. they might retain those which were given or bequeathed 't was therefore in the Bishops Liberty not only to make use of the Incomes but also to sell the very Estates to discharge the necessary Expences in Maintaining the Ministers and the Poor as also to give or bestow according to Exigencies And the Authority of Dispensator granted to the Bishop did not extend to the Fruits only as at present but also unto the Estate it self and to other Chapters which at first was Administred with Sincerity so that there arose no inconveniency thereby and lasted a long time in Poor Churches where the Estates being but small and the Bishops of no great Authority there was no matter or cause of Transgression But in Rich Churches and great ones where the Reputation Emboldened the Bishops to attempt that which would not have been permitted unto all and Abundance gave matter of being able to make use of some part Arbitrarily the Bishops began to exceed the Bounds of Modesty from Dispensing they came to Dissipating against which it was requisite to provide neither the Provision proceeded not from the Clergy-men but from Secular men to whose prejudice it was N. 165. For the Publick Estate of the Church being lessened the Clergy were not suffered to take their Living who were the first but the Poor who remained to the last In the most Principal Churches which were Rome and Constantinople the Provision was also first necessary wherefore Leo the Emperor by a Law of his Anno. 470 Prohibited the Church of Constantinople from every Alienation and in the year 483 Basilius Cecina Praefect us Praetorius of King Odoacre in Rome the See of Simplicius being Vacant by a Decree made in the Church Ordained that the Estate of the Roman Church should not be Alienated which was not found strange by three Succeeding Popes but in the year 502 Odoacre being extinct and all his Power Simmacus the Pope Assembled a Councel of all Italy wherein he proposed as a great Absurdity that a Lay-man should have made Constitutions in the Church N. 166. and by Consent of the Councel declared them Null But lest it should appear that this would tend to disorder a Decree was made in the Councel that the Pope of Rome and the other Ministers of that Church should not be able to Alienate specifying that the Decree should not oblige other Churches but the Roman only The following times shewed there was need of the same Law in all the Churches wherefore Anastasius extended Leo's Law to all the Churches subject to the Patriarch of Constantinople to all which he Prohibited the Power of Alienating But Justinian the Emperor in the year 535 made a Constitution General for all the Eastern Western and African Churches and also for all Pious Places Prohibiting the Power of Alienating excepting only to Feed the Poor in case of extraordinary Famine and to release Prisoners in which Cases Alienation was granted Conformable to the Antient Custom N. 167. of which St. Ambrose makes mention that not only Possessions but also the Vessels were sold for such Causes Justinian's Law in the West
such a Power but dealing otherwise and almost Incidentally a way which is not wont to make an entire Proof because the things incidentally spoken in one way being directly Considered and Examined are oftentimes expressed after another way Neither can it be said that this Authority serves for or tends to good because it appears thereby that almost all the Abuses have been Introduced From hence proceeded the Commendums the Pensions the Regresses the Vnions the Resignations the Expectancies the Reservations the Yearly Payments and the Quindenniums and other kinds which no man defends unless by excusing them with the general Corruption of the times There remains yet a third Doubt N. 234. no less Considerable in this matter which is that since the Popes have begun to make use of this so absolute Authority the Christian Kingdoms have alwayes Complained of it and have made some Opposition against them as is above mentioned in this History so that the Popes have been necessitated to Moderate themselves And the Moderation was not in their Condescending to forbear the exercise of their pretended Authority but by way of Transaction practized in dark Reasons making agreement with Kingdoms and by Form of Contract resolving unto what Terms or Bounds their Power was to extend a thing which might not have been done in Prejudice to their Successors if that Authority had been thus free in the Popedome Pope Leo the 10th Pragmatica Sanctio Concorda to take away the Pragmatica makes the Concordat and so he himself calls it in his Bull He that hath a most Ample Authority makes not a Concord but Treats with his Subjects like a Superior and by way of Concession I offer no Violence to the word but in all the thing it self N. 235. Leo not only calls it a Concordia but sayes also Illam veri contractus Obligationis inter nos Sedem Apostolicam praedictam ex una Praefatum Regem ex altera Partibus Legitime initi Some man may require that it be declared The Popedome of Rome having a Difference with the Kingdome of France the Pope pretending to have an absolute Authority over Benefices to reserve them to himself c. And the Kingdom pretending that the Authority belongs to their Prelates they forme two Parties at Law and to put an end to the Controversie they make a Lawful Contract of Obligation whereby they declare what ought to be the Authority of each how can any man say that the Popes Pretension was Legitimate and Clear I cannot say that I am able to answer any of these Difficulties if there be any Answer I Refer it to the Judgment of the Wise well may I say that Observing that which for above a Thousand years hath been Observed that Ecclesiastical Livings have been Administred in each Diocess N. 236. their own by their own Ministers all Difficulty is avoided and if Examples ought to Instruct they will be better and more fruitfully dispensed than now they are In the three first Questions hath been Treated of the Stocks or Estates of the Clergy the 4th now remains wherein follows the Treating of the Fruits or Rents or Incomes thereof The Holy Fathers who have Written before the Division of the Estates into four Parts have all said Unanimously that the Estates of the Clergy-men are the Poors and that the Ecclesiastical Minister hath no other Power over them but to Govern them and to dispense them according to the necessities of the Poor declaring those Ministers to be not only Thieves but also Sacrilegious who made any other use of them besides their Institution All Clergy-men did not Manage the Estates though indeed all were dispensed by them as likewise the livelyhood was Administred to Widdows to the Poor and to other Miserable Persons but according to the Example of the Institution of the Holy Apostles only the Deacons N. 237. Sub-Deacons and other Stewards were appointed thereunto and gave an Account to the Bishop and in some places to the Presbyter or Priest The Division being made and the Benefices Instituted although it would seem that the Bishop the Priests and the other Clergy-men might do what they would with the Beneficial Incomes as with their own yet the Writers speak in this manner saying that a Clergy-man cannot make use of the Incomes of a Benefice but as far as his Moderate need requires and the overplus he is obliged to spend in Pious uses and with much Reason because the Division alters not the Substance of the thing and an Estate if it comes to be Divided both parts remain under the same Obligation Amongst others who write after the Dividing St. Gregory who was a little above 100 years after and St. Bernard who was almost 1000 years after exclaim most heavily against those who spend the Incomes of Benefices in ill uses N. 238. as against Persons Usurping the Common Stock and Murtherers of the Poor which ought to be Maintained by them Thus all the Doctors Wrote until the year 1250 when they began to handle things more Subtilly and holding it for Constant as spoken by all the Antients that it was a sin to mispend that which exceeds the Moderate necessity of the Clergy-man 't was enquired into that if Beneficed men not spending of that in due uses which exceeds above their need whether they only sin as a man sins who mis-spends his own or whether also besides the sin they be Obliged unto Restitution as ill Consumers of other mens Goods If they be Patrons of the Fruits of the Benefices or as the Laws say Vsufructuaries although they sin by ill Administration yet they do Injustice to no man neither are they bound to make any one amends because they have not in Government any thing of another mans but their own But if they are Dispensators with Power only to receive their own needs which the Law calls Vsuaries N. 239. when they Dispence not uprightly they remain under an Obligation of restoring or making good as much more as they have Consumed much more those who receive from them by Contract gratis that is those to whom they give or leave by Testament are Obliged to restore it as having received it from one who was not the Master of it Conscience obliged me to set this Doubt on foot which having been handled or treated on these 350 years remains still in Controversie with equal number of Authorities on each side and at last with severe Oppositions and Apologies 't was in Controversie between Martin Navarr a Canonist and a Casuist of great esteem and one named Sarmiento Navarr holding that the Clergy-men are not Patrons but Dispensators so that they not only Commit sin but are Obliged unto Restitution Cardinal Gaetan was of a middle Opinion that it was a different thing between speaking of Bishops and Rich Abbots and those who had only what was decent or a little more and that these having no more than their own share N.