nay they reckon it Sacriledg in them and it is wholly impracticable unless they had particular and express Licence from the Pope or some Priviledge or Indult from that See. Nullum jus Spirituale cadit in Laicum praeter patronatus jus sepulturae saith Redoanus Et nulla consuetudo potest reddere laicos capaces Spiritualis Jurisdictionis saith he again Laymen can't be capable of Spiritual Jurisdiction and no custom can make them so And so Panormitan though the custom be immemorial So Joans â—up in his Treatise of the Liberties of the Church And so Lyndwood in an entire constitution throughout and it is the common Opinion insomuch that a Layman cannot prescribe for such Offices And it is an Argument with the Canonists That if an Ecclesiastical Office is not Spiritual it cannot be Simony to Let it for that very Reason Abbas upon this Title Ne prael vices thus glosses Quod Jurisdictio Episcopalis non potest pretio vendi est enim quid Spirituale And again it can't be sold Maximè cum Jurisdictioâ— sit Spiritualis And again Ego hoc intelligo quando Jurisdictio ista habit aliquid Spiritualitatis annexum alias judicaretur ut esset temporalis non Spirutualis licet talis Jurisdictio recipiatur ab Ecclesiasticà personà And in these Cases he calls it Turpe Lucrum and not Simony and so doth Pope Inn. IV. the greatest Canonist of them all And the Gloss speaks expresly the same thing Si aliquid exigat Simoniam committere videtur Maximè cum Jurisdictio sit Spiritualis So that if it be not Spiritual the Gloss grants it to be no Simony If then this Office be such as hath been used to be exercised by Laymen and not by Clerks it cannot be Simony to Let it according to the Laws and constitutions of this Kingdom because there is nothing Spiritual that passes in the Patent the Lessee being uncapable of a Spiritual Administration by the Canon Law and consequently it cannot be an offence against those Canons which are directed against Spiritual Persons only as are the Deans and Archpriests mention'd in the Canon of Tours And so tender is the Roman Church in this point That they counted it throwing sacred things to Dogs to let a Layman have an Ecclesiastical Jurisdiction Neither are Laicks permitted so much as to dispute about Religion under pain of Excommunication and being guilty of a Mortal Sin saith Navar Nay though never so Learned No not in Spain saith he where the Clergy are not very well qualified to hold Arguments about it themselves According to this limitation the Interpreters proceed in their comments on the Canon Law making it Simony to sell Offices exercised by Clergymen as Felinus saith who was Auditor of the Rota And the Gloss is his Authority Alij dicant quod tunc est Simonia emere aliquam Administrationem Ecclesiasticam cum aliquid Spirituale habet annexum vel talis est quae per clericum tantum consuevit exerceri ratione Officii Quod magis credo Where the Gloss rejects the Opinions of those who would make Simony extend to other Circumstances and Persons and is a Key to open every Ward and difficulty in our Question and gives the most genuine and rational distinction between buying Orders or Benefices and buying some Ecclesiastical Offices None but Clerks can purchase the two first and they have Benefices Ratione Officii quatenus Clerks but a Layman who hath no Relation to Orders and hath not so much as a capacity of any thing that is Spiritual unless perhaps an Advouson as Lyndwood saith the English have by speciall priviledge or of Jus sepulturae may have and may exercise some Ecclesiastical Offices or Administrations upon which ground 't is most rational that if one be yet the other should not be esteemed Simony Several other Glosses also afford us the same restrictions of Simony to convince that this is the true notion of it when the Law speaks closely and distinctly Sed alii non ita latè extendunt Simoniam inhaerentes consuetudini generali-Dicunt enim Quod tunc tantum est Simonia in emptâ Administratione si talis est quae habeat aliquid Spiritualitatis sibi annexum alias non If there were no other Gloss but this alone to clear the present doubt this were enough considering of how great Authority the Glosses are 'T is consuetudo generalis the common custom saith Gratian to restrain Simony in buying Offices to this point If the Office can't be exercised without a Spiritual Power 't is Simony else not Yet to clear it the Gloss adds in the same place Treating of the very Office of an Archdeacon amongst many other mention'd in that Canon called Salvator Quidam autem intelligant hoc totum de clericis in quibus dicitur Simoniacum hujusmodi Officia emere 'T is Simony for Clerks to buy these Ecclesiastical Offices And of Clerks only all that large and strict Canon against selling and buying them is to be understood By which we have clearly gain'd this point without any possibility of reply or contradiction That the Canon Law esteems it then only Simony to buy Ecclesiastical Jurisdictions when they are sold not to Laymen but Men in Orders Redoanus who alone about Simony is thought fit to be inserted in the Tractatus illustrium except two or three Leaves of Caraffa thus concludes about the Offices in the Canon Salvator by Authority of the Gloss upon that Canon Having discust some wild and extravagant notions of Simony in buying the Offices there mention'd speaks more closely thus Ray inhaerens consuetudini probabilius limitat quando Administratio habet annexum aliquid Spiritualitatis-vel consuevit exerceri per Clericum solum-unde saith Redoanus Ulde addit quòd Advocatus Castaldus which are Ecclesiastical Offices judex potest esse Taicus consequenter nihil habens Spiritualitatis So Sâ—â—â—â—a Sylv in the same Words and upon the same Authority And Cardinal Zabarel makes an Objection about the Office which is Vicedominatus not when 't is taken for the Chancellor as Panormitan doth in Ne prael vices That it is an Office meerly Laycal De quo non cadit Simonia though it be Ecclesiastical and his solution shews his Opinion Quod dicit textus de vicedomino intellige cum habeat aliquid Spirituale annexum Gratian proves That he who buys any thing that is Ecclesiastical buys also together with it the right of Exercising it and so Pope Paschasius hath decreed Neutrum invenditum relinquit And it is Simony if he gets it by the priviledge of his Orders for then he is presumed to buy the very Orders also since they and the Benefice are concomitant and he becomes capable of one by virtue only of the other Alio autem tempore emere non est peccatum saith the Gloss So that these authorities make it evident That the
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
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
his Secretary for Institution which made Bishop Bedell write all his Instruments himself and follow the Incumbents out of his Doors least they should give any thing to the Servants c. To give Money little or much to the Patrons Servants to speak to their Master to present To promise a Bishop not to require a living of him when he Ordains sine titulo To give to a Patron Money to present though he never doth or a Clerk to give Bonds to resign To give Money for Admission to a Religious House for a Fellowship in a Colledge or a place in a Lazer or any Hospital for a Commandry of Malta or Knight of Calatrava or Alcantara or any other Religious Order or to be keeper of the Sepulchre To give any Entertainment upon Admission or Installation To buy any Place in Chancery or Doctors Commons when they were all Clerks as Originally they were or any Ecclesiastical Jurisdiction or Office when exercised by Clerks and Unmarried Men as Anciently they all were but now it 's not Simony for as the Nature of the Function is altered so is the Nature of the Purchase To advocate or plead Ecclesiastical Causes for Money was Simony heretofore say Altissiodorensis and Aquinas but not now To make a Notary Publick in Ecclesiastical Matters for Money I shall add upon the Authority of the Gloss what I spake of before To buy the Porters place or Bellringers or Butlers or Candle-lighters or the Grooms or any other Office Ecclesiastical Besides these we find many Nice enquiries in the Canonists about Simony As whether one can be a Simonist by making a Contract with God or the Pope Or by buying a Slave his Liberty that he may enter into Orders Whether one can be Simonical without an intention to commit it Whether it be Simony to give Money if the Incumbent should have had the Benefice though he had given nothing Whether to give one Spiritual Thing for another Whether Gehazi was a Simonist who made no compact or took any thing of the Profit till after his Master was restored Whether to give Money to an Infidel on condition he be Baptised Whether Clerks may take Money for Spiritual Offices in Places where they are not bound to officiate For what is Simony and what is not is one of the most perplexed Questions in the Canon Law. So Pius the Fourth thought it when he revoked many Decrees of his immediate Predecessor about it though formed by 150 Cardinals Bishops and Canonists and approved by most Universities in Christendom because he adjudged them too rigorous And Felinus cites the Archdeacon of Florence who saith as much of Eugenius and Martin the Fourth and of one of the Urbans For Ecclesiastical Simony being but malum quia prohibitum and only a Pontificial notion The Popes might correct their Breves as they saw occasion and make that but Disobedience in one Pontificat which was Simony in another Which had the Promoters of this Cause well weighed perhaps they would not have contended so fiercely to create a new Crime and Sect of Simonists unknown to all the Canonists of Christendom from Innocent the IV. to Fagnanus and which is not to be found in any of the Rotaes Counsils and Decisions extant if the case be stated true according to the Fact which is That the Jurisdiction was not sold but let and not to a Clerk but a Layman FINIS ERRATA PAge 8. line 17. for Gratian read Seneca ibid. l. 23. r. intelligunt P. 9. l. 6. Laical ibid. l. 26. made use of P. 10. l. 4. Victoria P. 11. l. 5. intend P. 12. l. 24. add and Impropriators c. P. 13. l. 36. Covaruvias P. 14. l. 8 9. Covaruvias P. 19. l. 11. Canonists In Actor 8. 21. Duck de usu aut jur Jus Belgarum c. Edictum Phil. 2. Gerson Epistolae Ecclesiasticae Foâ—sterus de jure can quatenus recipiend in Praefat Popery its principles and pos pag. 35. Duct dub l. 3. c. 4. reg 16. Alex. 3. Gr. 9. Bon. 8. Clem. 5. John 22. Extra de paenis c. licet * Ubi principale quaefitum non est Pecunia non est Simonia sayâ— Navar c. De Jur. l 9. Art. 2. in fine Vide Redoanum per totum de Simonia De Jur. lib. 9. Tit. Simonia pag. 759. Durand in Dist 4. 25. qu. n. 5. De Jure Just Tit. de Sim. Extra ne prael vices cap. Quoniam Navar. Tract 2. Vol. cap. 23. de 7 Pecc Capital Lib. 5. Tit. 4. Vices i.e. Jurisdictiones Gloss * Vendere Officia non est contra jus divinum Soto de Jur. cap. De Sim. So Rodoan de Sim. per totum De Jur. Tit. de Sim. l. 9. De Sim. pars 2. c. 9 n. 4. Id. pars 1. c. 28. n. 8. In cap. Messâ—n de elect not 3. Lup. 9. 6. n. 2. Lyud Red. de Sim. pars 2. c. 36. n. 5. Not. 1. In Ne prael vices Extra Ne prael vices c. Quoniam v. precio Lib. 5. Tit. de haeret Consil 29. n. v. 8. Fel. in cap. consulere de Sim. Tit. 3. n. 7. Glos. q. 3. ad huc v. qui claudi tostia 1 Qu. 3. Salvator v. judicem Gloss v. Subjecto vero Redoan pars 3 c. 23. n. 16. V. Simonia Zab. in consuleâ—e de Sim. 1 Qu. 3. Si quis 4 Sent. Dist 25. In cap. extirpandae qui vero de prael Red. c. 29. n. 19. pars 1. Pars. 2. 1 q. 3. Salvator In 1 q. hujus quaestionis In Ne prael vices Vict. Relat. c. de Sim. n. 16. Theol. Moralis l. 6. tr 10. de Sim. c. 6. n. 63. Tract de Sim. qu. 3. 1 Qu. 3. 1 Qu. 3. Salvator Inst Moral pars 3. l. 12. c. 14. in fine Andrews Bilson Burhill Tompson Carlton Sanderson c. Tab. 2. In margaritâ Bald. Loco Repert Innoc. 4. Super Decretal Excommunicare suspendere est jurisdictionis non autem est de curâ animarum Ita notat Host in c. dudum de elect Lib. 5. c. 7. de Rom. pontif Pag. 41. 48. Pars 2. c. 4. De supr pot Laicâ fol. 39. Lib. 2. c. 1. Cap. 2. p. 12. De inter dicto cap. 2. n. 5. In suo p. 461. Hist of Councel of Trent l. 4. Pag. 158. Lib. 2 de Sacramentis In ne prael vices Qu. 3. Sed ad huc 22 Qu. 100. Art. 4. 16. Q. 7. Decerminus l. 8. c. 13. p. 5. Lynd. de vita hon cler c. exterior v. pendulis Lib. 3. de Praeb Consil 13. n. 3 4. Extra in 6. de temp ordin c. 1. v. Italiae M. 6. de paenis v. paenis Lynd. de locat conduct c. ut verè v. certis personis Matt. Paris Spelman 2 vol. Concil in initio Can. 40. Reg. juris in 6. De vita hon cler c. hoc sacro v. beneficiis Extra de verb. sign c. quaerenti Videsis Saynum de censuris Tab. 7. Burton Melford Hughs Degg Godolphin Lynd. Nè prael vices lib. 5. Cap. Ecclesias Cap. Indign 1 2 Phil. Mariae 8. Revived by Queen Eliz. Episcopacy not prejudicial c. Pag. 32. 25 H. 8 21. 1 Eliz. 1. In Nè prael vices Dr. Heylin c. 25 H. 8. 21. 1 Eliz. 1. Page 32. Mich. 21. Hen. 8. Banc. Roy. Id. Page 40. Though they granted a Prohibition upon another suggestion Repert Canon cap. of Simony * The present Bishop of Sarum in his life 1. 9. 3. c. 1.