solemnized in the Church in causes Testamentary because Testaments were many times made in extremis when Church-men were present and therefore they were thought the fittest persons to take the probate of such Testaments Howbeit these Bishops did not proceed in these causes according to the Canons and Decrees of the Church for the Canon Law was not then hatched or dreamt of but according to the Rules of the imperiall Law as the Civill Magistrate did proceeed in other causes neither did the Emperours in giving this Jurisdiction unto them give away their owne supreme and absolute power to correct and punish the Judges as well as others if they performed not their severall duties This then is most certain that the Primitive Jurisdiction in all these causes was in the civill Magistrate and so in right it remaineth at this day and though it be derived from him it remaineth in him as a Fountaine for every Christian Monarch as well as the godly Kings of Juda is Custos utriusque Tabulae and consequently hath power to punish not onely Treason Murder Theft and all manner of force and fraud but also Incest Adultery Perjury Usury Symony Sorcerie Idolatry Blasphemy neither are these causes in respect of their owne quality or nature to be distinguished one from another by the names of Spirituall or Temporall For why is Adultery a spirituall cause rather then Murder when they are both offences against the second Table or Idolatry rather then Perjury being both offences against the first Table And truly they were not so called from the nature of the Causes but from the quality of the Persons viz. The Clergy being men intended to live secundum Spiritum whom the Prince made his subordinate Judge in these Causes and this distinction of Temporall and Spirituall Causes began first in the Church of Nota. Rome where the Clergy having by this Jurisdiction got great wealth their wealth begot pride their pride ingratitude towards Princes who first gave them their Jurisdiction and then according to the nature of all ungratefull persons they went about to extinguish the memory of the benefit for whereas their Jurisdiction was first derived from Caesar in the execution where of they were Caesars Judges so as both their Courts and Causes ought still to have born Caesars Image and Superscription as belonging unto Caesar they blotted Caeâ—ars name out of the Stile of their Courts and called them Courts Christian as if the Courts holden by other Magistrates had been bâ—t Courts of Ethnicks in comparison and the Causes which were meerly Civill in their nature they called Spirituall or Ecclesiasticall so as if the Emperours should againe challenge their Courts and Causes and say Reddite Caesari qua sunt Caesaris they would all cry out on the other part and say Date Deo quae sunt Dei Our Courts beare the Name and Title of Christ the Superscription of Caesar is quite worne out and not to be found upon them And this point of their policy is worth the observing That when they found their Jurisdiction in Matrimoniall Causes to be most sweet and gainfull of all other for of Matrimoney they made matter of Money indeed to the end that Caesar might never resume so rich a perquisite of their Spirituall Jurisdiction they reduced it into the number of the seven Sacraments After which time it had been Sacriledge if the Civill Magistrate had intermedled with the least matters that had relation to Matrimony or anie dependency thereupon Hac ille Thus you see the power of the Civill Magistrate supreme over the Ecclesiasticall State and some grounds and reasons of it cleered many other might be given but I think I have said enough Now to draw to conclusion They exempt not onely the Clergie but all the brotherhood not onely in criminall cases but in civill also untill be be cast out of the society or brotherhood Thus you see they exceed the Romish Church Indeed as to me it seemeth this Independent Government in the Church is derived from Note They will erect ten thousand Indicatories in England and as many Doctrines whereas the Doctrine of the Church of England ought to be one and the same 21 H. 8. 21. 13. Eliz. 12. the Church of Rome who have alwaies in all ages laid this as the foundation of their pride where they have prevailed to exempt the Church and Clergie from secular power attempted in England even of late times in the time of King Henry the eighth by the Clergie here in matters criminall as appeareth in the legall reports of Keloway and in the times of other Kings practised more ancient as Henry the third and others Thus briefly liberavi animam meam let every man use his liberty in censure Utere tuo judicio nihil enim impedio My wish is that they which sit in the high places would well weigh the premises and do that which is consistent with this Government whose proceedings we pray may be prosperous yea we wish unto them good luck in the name of the Lord. FINIS
A BRIEF DISCOURSE PROVING JNDEPENDENCY IN Church-Government Destructive to the Positive Lawes of this KINGDOME and inconsistent therewith By ROBERT DERHAM of Grayes Jnne Barrister Published according to Order July 13th LONDON Printed for Thomas Bates at the Maidenhead on Snow-hill neere Holborne Conduit 1646. To the Reader Courteous Reader IF thou beest Jndependent in thy opinion yet J hope thou art not an enemy to the Lawes of this Kingdome which are thy Birthright as well as thy Possessions Peruse this Work without passion or partiality see if thy tender affections will suffer thee to divide the Child J meane the Temporall and Ecclesiasticall Iurisdiction which if done must needs prove destructive and fatall to both They are Twinnes lovingly imbracing each other seeke not thou to sever this unity they are acquainted with each others wants and defects having such sweet intercourse the one with the other in legall proceedings indeavour not thou by estranging them the one from the other to endanger the ruine of both lest thou unhappily prove not onely a Patricide but Occisor Patriae J will say no more but commit thee to God and his goodnesse Farewell A briefe Discourse PROVING JNDEPENDENCY IN CHURCH-GOVERNMENT Destructive to the Positive Lawes of this Kingdome and inconsistent therewith THe subject that I intend to debate at this time is not whether Presbyteriall or Independent Government in the Church simply of themselves considered bee most warrantable by divine Authority but how they stand with relation to the Lawes of this Kingdome for that shall be the compasse of my thoughts at this time wherein I shall not labour to justifie the Lawes of this Realm by the sacred Rule expresly for surely some of them Con … vall to the people of this Nation so as it cannot possibly be ruled by any other Law being Customes made by themselves 〈◊〉 Prince being the Low-giver many Statutâ—s especially in this Discourse mentioned being declaratory of these Customes sworne to by Kings and People Anâ—thema on them pronounced that seeke to alter any of the fundamentall Customes or Laws Premunire high Treason by Law or the most are praeter Scripturas not Contra they being laudable constitutions generally received yea allowed by Gods Word implicitè though not explicitè so that they may be inconsistent with the Independent Government in the Church so much now contended for although we should admit the said jurisdiction warranted by Holy Writ and yet no blemish to the Civill Magistracy Come wee then to the point What say the positive Laws which are the common Law or Statutes The common Law and Statute in this particular appear in the Act of 1. Elizabeth 1. for that Act is but declaratory of the ancient common Law as it was resoved in Cawdries Case by all the Judges of England not of any new Law introductive The words of that Statute are That such Jurisdiction ecclesiasticall as by any spirituall or ecclesiasticall power hath heretofore been or may be lawfully exercised for the visitation The Kings Lawes limit and bound the Ecclesiasticall jurisdiction 5. Eliz 23. Co. Iurisd of Courts 321. of the ecclesiasticall Estate Persons and for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms abuses Offences Contempts and Enormities shall for ever be united and annexed to the imperiall Crowne of this Realme and that her Highnesse her heirs and Successours shall have power to nominate Commissioners to exercise all Jurisdiction eccesiasticall in the causes before-named c. So that although the high Commission grounded upon this Act be taken away yet the Jurisdiction still remaineth in the imperiall Crowne to be dispensed in these causes before named as the ancient Law of this Land also in all other causes Ecclesiasticall the King by his Ecclesiasticall Judges ministreth justice wherein if a man be injured in any Court he may have redresse by Appeale to a higher Jurisdiction and for default of Justice in the Ecclesiasticall Courts last of all to the King as supreme in his High Court of Chancery as appeareth by the Act of 25. H. 8. cap. 19. See here justice subordimately ministred and the King or civill Magistrate in all Causes Ecclesiasticall supreme in point of Jurisdiction Now that the Independent Government in the Church takes away all * In civill causes as well as others untill the offendor be cast out of the Church and then you may appeale to the civill Magistrate not before in matters of personall injury onely not in matter of scandall Appeals in matters pertaining to their cogâ—izance I suppose needeth no proofe at all it is so clear Their very title and name intimates as much they are Independent viz. they depend upon no other Court of Justice to give account of their Actions judicially by Appeal or otherwise They stand not at Caesars Judgement-seat that is the temporall Magistracy they are like the great Potentates of the Earth accountable to none but God in case injustice be found in their judgements if in their wisdomes errour appeare as Humanum est errare you may fill Iustification of Independency by Chidley the skies with complaints bootlesse If any shall be censured in their Judicatories for prophanation of the Sabboth by working on that day tipling in Ale-houses or the like if he be injured he cannot have justice elsewhere whereas the Ecclesiasticall and Statute Law in those cases give Appeale as appeares by 25. H. 8. before mentioned 4. Jacob. 5. 3. Caroli 1. In all which cases if he be proceeded against by Censure Ecclesiasticall or Temporall he hath remedy by Appeale errour or other legall course to right himselfe if injured If in Doctrine or Discipline this Independent Governour with his Assistants shall be hereticall erroneous or scandalous to the Government or any particular person no remedy but as it is truly said of the Divine Majestie Confugiendum à Domino iâ—â—to ad DominuÌ„ placatum Whereas by 2. H. 4. 15. 13. Eliz. 12. he is to be censured for heresie by the Bishop of the Diocesse and to be delivered to the secular power to be burned And if he shall maintaine any Doctrine contrary or repugnant to the Articles of the Church of England and penist therein he is to be deprived of all his Ecclesiasticall promotions and further to be punished by the Ecclesiasticall Law as appeares by 13. Eliz. aforesaid If he shall preach any Doctrine scandalous to the Civil Government he may be indicted at Common Law and punished according to the quality of the Crime In all which cases there lyeth remedy by Error or Appeale See now at one view how many Lawes are nullified by this strange and unheard of power I might instance unto See Câ—vvdâ—ies case where they are recited you throughout all matters of which the Ecclesiasticall Jurisdiction hath cognizance Ancient or Moderne the same mischiefs follow no Appeal no Redresse Besides the Common Law and Statutes many and numerous depending upon the
Ecclesiasticall Law corroborating strengthening or assisting woven and interlaced with them are all at one blow cut off and destroyed Also the Common Law Courts à fortiori then the High Court of Parliament have supreme Power in moderating the exorbitancies of the Spirituall Jurisdiction if the Spirituall Courts incroach upon the Common Law yea upon one another as it hath been too familiar of late times especially See before he is free in all cases so long as he continues in the brotherhood the Kings-Bench or Common Pleas by prohibition have power to curb and restrain them although the Common Law holdeth no Plea of them I need not to give you some examples the Law is so plentifull herein I believe Independency frees from the If they will not cast out of their Society a hainouâ— offender against the lawes what remedy Power of the Civill Magistrate in Matters Coram non Judice as the Law saith as well as in Causes within their cognizance But peradventure it may be objected their Power shall bee regulated their Jurisdiction shall be knowne and if Vpon the point they will assume all dâ—spensatiâ—n of justice in all cases to themselves and the civill Magistracy shall be contemptible they exceed their limits they shall be under Censure of the Law If this should be admitted which how true it may be I know not yet in causes pertaining unto them it will not be so they will grant no dependency upon the Temporall State in matters Ecclesiasticall the Common Law nor Parliament shall have nothing to do with their judgements which supreme Power hath been by great Antiquity invested both in the Common Law and in the High Court of Parliament yea although in things pertaining to spirituall Jurisdiction and the ground of this you shall see presently I will cite you but two Statutes by which you See the prâ—â—mble of the said Act of 21. H. 8. Parliaments have power not onely to dispense but to abrogate adnull amplifie or di … sh all humanâ— Ecclesiasticall or Temporall lawes by naturall equity and good reason shall perceive that both in Doctrine and Discipline in the Church the supreme Power hath rested in the civill Magistrate and doth so continue to this day the one is 25. H. 8. 21. granting the Parliament power to enact any thing not repugnant to Holy Writ yea even in matters of Faith and Doctrine in the Church also note the words of this Act further viz. Not minding to seeke for any reliefes sucâ—ours or Nota. remedies for any wordly things and humane Laws in any cause of necessity but within this Realme at the hands of your Highnesse your Heires and Successours Kings of this Realme which have and ought to have an imperiall Power and Authority in the same and not obliged in any worldly causes to any other Superiour Where observe the largenesse of the words Humane Lawes comprizing whatsoever in Doctrine not repugnant to Scripture or Discipline for the Government of the Church by the King and his great Councell the Parliament shall bee judged expedient as you may see in another branch of this Act immediately fore-going it must be intended The King viz. in his politike capacity conjâ—yned and united with his High What will become of independent Synods if no Synod be to be called but by the civill power Court of Parliament for so are the expresse words of that branch giving the King Power with the Nobles and Subjects and so must of necessity the second branch be interpreted the other Act is 25. H. 8. 19. enacting no Constitutions Ecclesiasticall of force or to be of force without the royal assent None to be made in fut without leaue and that none be executed repugnant to the Lawes of this Realme What now becomes of this Independent-Government Those already made to be perused by the Parliament if it be contrary to the Lawes of this Realme as it is manifest it is unlesse you destroy Co. Iurisd of Co. tit Convocation the Kings Ecclesiasticall or Temporall or Civill Lawes yea the great mulcts added by the Lawes of this Land by way of assistance or corrobation to many spirituall offences by fine and imprisonment death c. ut poena ad paucos metus ad omnes perveniat wholly lost and taken away by this new frame of Government for sure this Independent State will never demand that Power since no Ecclesiasticall Jurisdiction ever of right enjoyed it I meane the Power to fine and imprison onely Power of imprisonment granted to Bishops and others having Episcopall Jurisdiction and that of Priests only but still the power of Appeal saved by 1. H. 7. 4. What will also become of their power of Excommunication Major or Minor unles they crave aid of the Civill Magistrate to have a Writ of Excommunicato Capiendo who will regard their excommunication it will be but contemptible without the Lawes of this Realme to aid and assist them Thus you see they enervate halfe the Laws of this Kingdome yea their owne strength as formerly I have shewed you by this Anarchy as I may term it They make their owne power despicable being they seeke to abrogate those Lawes which do and must strengthen and assist their Jurisdiction unlesse you will say they shall have that vast Power of fine and imprisonment before-mentioned which surely will never be granted unto them for that were Misera Servitus that a mans body shâ—uld rot peradventure with imprisonment his Salvo Contenemeno mentioned in the Laws of this Land so often destroyed and yet no Habeas Corpus the precious liberty of the Subject in course of Justice to be obtained nor any prohibition or legall proceedings to rectifie these enormities The Turkish tyranny were as tolerable Thus I hope I have plainely proved the Ecclesiasticall State must in all things be in Doctrine and Discipline subordinate to the Civill Government as before is specified or else you nullifie and destroy the Lawes and Statutes of this Kingdome It remainoth now to show you the reason why Parliaments of this Land have alwayes exercised this supreme Power over the Ecclesiasticall State one reason was I conceive because the Civill Law which concerneth much the Ecclesiasticall Jurisdiction here established used the same power in the time of the Roman Emperours both before and after they had received the Christian Faith for the space of three hundred yeares after Christ and the distinction of spirituall and temporall causes in point of Jurisdiction was not then known but all Power was in the Civill Magistrate But afterwards out of a zeale they had to grace and Seâ— Ridley in his view 115 116 117. honour the godly and learned Bishops of that time they were pleased to single out certaine speciall causes wherein they granted Jurisdiction unto the Bishops namely in cases of Tithes because they were paid to men of the Church in causes of Matrimony because Marriages were for the most part