and divulgeth me both in publick and private assemblys to be excommunicate and why forsooth for bringing the Priest Brangan by a warrant in the cause of my bookes before a secular Tribunall Vpon this no man hence forward must eat or drinke with Paul Harris no man may converse with him no man must salute him or bid God save him For why Incidit in canonem He is fallen within the penalty of the Canon Nay rather Incidit in latrones He fell into the hands of a company of the eves who wounding him and leaving him halfe dead he had utterly perished had not the good Samaritan taken compassion of him Now albeit I have handled this matter in my late answer unto Thom. Flemming his Excommunication yet for that this discourse drawes me so aptly into the same controversie a point of such debate at this day twixt the Clergy and the Regulars it shall not be from the purpose to enlarge my selfe with some few additions to what in my former bookes hath beene delivered upon this Argument as in the Chap. following CAP. VII The state of the Question is this Whether in these Kingdomes under the government of the King of Great Brittainy A man conventing an Ecclesiasticall person in a cause meerely civill before the tempotall Magistrate hath ipso facto incurred Excom De Iurc THe Bishop I will not say with all his Clerks but with all his Friars maintaynes the Artirmative In confirmation wherof they allâ—dge those known texts of the Canon and Councels cap. sivero lo. primo de sont excom e si Index leisus co tit Lib. 6. in extr Martim ad reprimendum 11. q. 1. where it is said that no Clarke may be convented before a secular judge either for cause civill or criminall So Concil Chalcedonsan 9. â—dgathènse can 32. Carthag 3. can 9. c. Bulla cene For answer herennto I say that those and diverse other texts out of the Canon may be alledged to that purpose For I acknowledge as in my booke unto the Excommunication that regularly speaking no ecclefiasticall person may be convented or empleaded before a temporall Iudge in any cause ecclesiasticall civill or oriminall Yet since humane lawes are not obligatory till such time as they be received according to that Leges institnuntur cum promulgantur confirmantur dum approbantur Distinct in istis § prox Lawes are then ordayned when they are published but confirmed when they are approved yea and being received and approved may not only by the Law-makers bee repealed or by priviledge dispensed withall but also by a contrary custome abrogated according to that Dilect 4. de Arbitris cap. 2. Extra de Consuetudinibus Locorum consuetudines ubirationabiles sunt juri scripto derogare possunt The customes of places being reasonable may derogate from the law written and such is the doctrine of S. Aug. in his epistle ad Casulanum cited by S. Tho. 1.2 q. 97. ar 3. Mos populi Dei instituta majorum prolege sunt tenenda sicut prevaricatores legum divinarum it a contemptores consuetudinum ecclesiasticarum coercendi sunt The custome of Gods people and the ordinances of our ancestors are to be held for a law and as the transgressors of divine lawes so the contemners of ecclesiasticall customes are to be punished They who desire more reason and authority for the confirmation of this point let them read the Angelicall Doctor 1. 2. q. 97.3 Also 2.2 q. 79.2 and q. 100. 2. and it hath the consent of all Divines First then since it appeareth by the Registers of spiritual courts that ecclesiasticall persons from time to time have beene convented in cases ecclesiasticall before ecclesiasticall Iudges as in matter of doctrine sacraments benefices tents c. And secondly since it appeareth by the Registers of the same courts to such as will looke into them that ecclesiasticall persons have usually beene convented in causes criminall before the said Tribunals as felonies rapes murthers c. and either found innocent cleered or guilty punished and in crimes capitall degraded and so delivered unto the secular arme And thirdly since it doth not appeare by any Register or other testimony to be produced for these thousand yeares and upward that any civill cause as matter of lands In heritances debts leases sales rents purchases c. have beene sued or sentenced in any court of Bishops Archdeacons or their officialls by vertue of any ecclesiasticall power or jurisdiction whatsoever But of the contrary is manifest and will well appeare by the records of the Kings Courts by bookes of the common law and their reports in every Kings raigne that in the cases above mentioned both Bishops Priests Abbots Priors Superiours of Convents in behalfe of their subjects and all sorts of ecclesiasticall persons both male and female have had their trialls in the aforesaid cases before the secular Tribunalls witnesse both the Canonist and the Common Lawyer I say these grounds considered It is evident to any man of common sence and understanding that either that Canon which in these civill actions drawes the plea unto the ecclesiasticall court of Bishops or any other spirituall Iudges was either in these kingdomes never received or if it were at any time in observance by custome beyond all memory was abrogated Neither neede wee to marvaile thereat for so much as there wants not examples as well as doctrines leading us thereunto For first not to speake of the Canons of the late counsell of Trent We see the Bull of Pius quintus de Censibus in few places besides Italy and Spaine in viridi observantia in due observance And why because it is not received What Canon or Law of the Church more generall then that diparitas cultus derimit matrimonium Difference of religion that is where one party is a true beleever the other an Infidell or heretique dissolveth matrimony And yet Becannâ— the Iesuit tells us that the Catholickes of Germany marrying with the Lutherans incurre no such impediment neither before nor after matrimony And why Because saith he that law of the Church was either among them never received or if so by contrary custome abolished Againe Panor with Felinus in e vniver sitabis As also Decius in e. dilectis num 3. de Appell tells us that such lay men as by command of the Ecclesiasticall ludge shall torture those whose persons are priviledged from violence by that Canon Si quir suadome diabola c. or for correction and punishment of their offences shall beat such Monkes or Friars with rods staves or clubs as well the ecclesiasticall Iudge so commanding as the lay persons executing his sentence doe both of them incurre the Canon and are excommunicated ipso facto de Iure And yet Graphius a grave writter and a monke of S. Benets order in his decisionibus aureislib 2. cap. 49. excuseth as well the one as the other the Iudge as the executioners by reason of a contrary custome practised in
France and now of late brought into Italy and maintaines this custome contrary to the law yea to be more reasonable then the law it selfe namely that men of the laity rather then of the Glergy should be used as executioners in the aforesaid cases Those who desire to set moe examples of this nature let them read Sotus de Iure Iustitia Suarez or Lessius of the same Argument Now then to come home unto our case in hand I meane of civill causes commenced pleaded and determined in the Kings Courts the defendants being as well ecclesiasticall as lay persons in these Kingdomes of Britanny May we not perswade our selves that a custome so universally received and without interruption continued since the Conversion of the Saxons under Pope Gregory the great and King Ethelbert of England for the space of a thousand yeeres and upward may not take place of the Canon that sayth Preists in all causes must be presented before ecclesiasticall Iudges Cap. Qualiter de Iudicijs especially it being no lesse a law and a Canon of the Church as hath beene before observed That the customes of places being reasonable may derogate from the law written Ext. de consuetudinibus declared above by some examples Now then must I needes bee foreed to beleevâ—â— that all our Kings Bishops Nobles Iudges and Magistrates by whose authority Ecclesiasticall persons were convented in civill causes before secular Tribunals for a thousand yeares and upward did all live and dye excommunicated throwne out of the Church as perished members without hope of salvation when as among our English Kings themselves sixe of them were canonized Saints of which honor no other kingdome of the earth can glory namely King Oswald Etheldred Edmund Richaâ—d Edgar and Edward the Confessour many Bishops as S. Augustine S. Anselme Dunstaâ— Thomas all Archbishops of Canterbury Richard of Yorke Cutbeâ—t of Duresme Thomas of Hereford c. Alas while these and the rest of our country men were bound in the setters of Excommunication where were our gray and blacke Friars and the other zealous Regulars whose parts it was at the least after their arrivellto have anmonished both prince and people of their errors to have preached and published bookes condemning that practise so coâ—ary to the lawes as these maintaine of holy Church was the Pope and Roman court also asleepe for so many ages and would not enforme their spirituall children of so great a violation of the Canon had they misliked thereof Nay rather is it not the universall consent of all divines together with the Canon it selfe That the permission of the Pope in any Church law seeing the same either from the beginning not to be observed or by contrary custome antiquated and notwithstanding is silent and makes no opposition thereunto excuseth the subject from sin as presumed to approve and allow of the said practise See for this glan cap. in ist is § leges dist 4. in c. de treu pace in cap. cum multi 15. q. ult For so much then as it is certaine that as well ecclesiasticall as secular superiours may oblige their subjects albeit never so unwilling to obey their iust lawes so often then as they see the same lawes not to be observed and passe it over in silence they sieme thereby contented therewithall and such silence and taciturnity of the Law-giver may by the subiect according to the former rules be expounded a full consent and approbation of his practise Adde hereunto the observation of a late English Franciscan whose true name I understand is Dampart and his usurped Franciscus à sincta Clara in his late booke Deus Natura Gratia in which as my country man Edmund Bunny laboured in his treatise tending to Pacification to reconcile the Roman Catholiques to the Protestant profession So this Friar of the contrary by his glosses and paraphrasticall expositions labours to draw the Articles of the english confession to the Catholicke and Roman doctrines But let the Friar wring and wrest till he be weary he shewes himselfe but a time server a slatterer and a meere Alchimist adulterating both the doctrine of them and us and seeking to please both a inst reward for such a worke contenteth neither of whom it may be said as of the dead serpent stretched all along upon the grasse Amo sic vixisse oportuit yea so thou shouldest have lived The serpent all his life long lives crooked onely after death is straight so are many at this day both in their lives and doctrines very crooked onely death teacheth them how they ought to have lived themselves and how to have taught others to the example of the Apostle 2. Cor. 2. Non enim sumus sicut plurimi adulterantes verbum Dei sed ex sinceritate c. For we are not as very many adulterating the word of God but of sincerity and as of God before God in Christ we speake Well I must not forget for all my digressió wherefore I brought the Friar upon the stage namely for a testimony against his fellow Triars of this kingdome to shew how unlike to untuned Virginalis their wires doe jangle these maintaining that civill actions against a Priest must be heard and determined in the Bishops consitory the English Friar in the Kings courts for which he produceth his authors His words are as follow in his paraphrase upon the 27. article Confess Anglicana Regibus autem nostris fursse sic eoncessum jus nominandâ— providendi de beneficys testatur post alios Harpâ—feldius seculo 14 fursse etiam aliam consuctâ—â—dinem ex privilegio ort am immemorialem causas Clericorum cognoscendi patet ex decisione Rotae 804. ut communiter citatur To our Kings was granted the right of nomination and provision of benefices as after others witnesseth Harpsfeild in the 14. age As also another custome time out of minde sprung from a priviledge of taking knowledge of the causes of Clergy men as appeareth by the decision of the Rota as it is commonly cited So the English Friar This Do. Harpsfeild as I take it was Archdeacon of Canterbury in Queene Mary her dayes and continued the ecclesiasticall history of England froÌ„ Venerable Bode his time to his owne Decisiones Rota are the very life and quintessence of the Canon law so called from a known office in Rome called the Rota But neither of these bookes are with me for which I use the Friars quotation And now the infirmity of my body not permitting me to proceede further which for the space of these 2. moneths hath much afflicted me and dayly encreasing upon me I am forced thus abruptly to breake off rather then to make an end Beseeching almighty God of his infinite mercy to grant me and all my Adversaryes and all those who professe the name of Iesus Christ to live and dye in true faith hope and charity And so hoping to see the good things of our Lord in the land of the living I take my
by which separation from both they have framed a new no. Church unto themselves worthy no where to be admitted In the second and last place I am to prove according unto my promise That the Friars of this Kingdome are no good subjects so also in that respect rather deserving punishment then either favour or protection from the State under which they live And so I argue In those better and more religious times of our Ancestors and when the Catholick faith did most flourish in Great Britaine taâ—ne and the Iles adjacent Cùm terra â—rat unius labij when our Kings Bishops Nobles and Commons were all of one heart and lipp in the worship and service of God when the Canons Lawes and behests of holy-Church were in most rigorous observance yet even then and in those dayes no Archbishop Bishop or Prelate took upon him or might by vertue of any Ecclesiasticall calling or dignity to banish either out of the Land or any one district Dioccesse or County any of the Kings subjects of what calling so ever or for what cause so ever And albeit Metropolitans Bishops Arch deacons other Prelats were of as great power as ample jurisdiction in those times as any of their successours have been since yet notwithstanding all suites against ecclesiasticall persons of what quality or degree soever in civill and secular causes as debts rents revenewes leases inheritances and the like were both commenced determined in the Kings temporall Courts not at all in the Bishops Consistoryes as appeareth both by the ancient Lawes of these Kingdomes the consent of the learned professours thereof who all with one voyce as well Catholickes as Protestants doe at this day agree in the premises Notwithstanding all this our new titulary Bishops especially so many of them as are sent unto us out of the Friaryes beyond-seas together with the whole Regularismâ— of this Kingdome doe stoutly maintaine both by doctrine practice the contrary First that they have power to banish if they bee Arch-bishops out of their Provinces if Bishops from out their Dioceses not only for offences but even ad nutum indicta causa at their own will and pleasure without either examination or determination of cause any of the Kings subjects aswell of the temporall as ecclesiasticall estare Secondly they teach practically maintaine that whensoever the Defendant is a Clergy man not only in ecclesiasticall â—anses but as well in temporall civill as debts morgages leases rents c. they are to be impleaded before the Bishop of the Diocesse in which they live not in any of the Kings Courts at all In defence and justification of both which paradoxes Tho. Flemwing titulary Archb. of Dub in stiffly persisting for that indeed within the Diocese of Duklin he had practised both those points notwithstanding that his errour was with much mildues and learning both out of the Canon Common-Lawes opened unto him by one of his Majesties Privy Councell yet can he not to this day be reclaymed but remaines most wilfull obstinat in his former practised error His Friars perswading him to offer himselfe a sacrifice in defence thereof laying an imputation upon all such as complaine of this his tyranny that they seek his bloud Not doubting but one way or other to prevayle in this his usurpation notwithstanding what opposition soever of the higher powers against him And like unto this our Archbishop Flemming is another Franciscan the present Bishop of Downe of the house of Maggennes a man in his behaviour more like an Italian Bannito or some debosht Ruffian then a sacred Bishop as may well be seen by his fantastique acoustrements coupled to his Vltique manners having his locks hanging over his rich face down his shoulders even to the center of his back strouting himselfe at every third word upon his tip-toes as if he were angry at his parents for not making him a foot longer And if any think my pen hath wronged him in this rough draught let them make a pilgrimage unto him he lives not above two dayes journey from Dublin if they find him not as I have presented him let them come unto me tell me of it I will congratulat with them his reformation This Hugh Magennes transformed first into a Friar after into a Bishop retaining still the first savour seasoning of the pot meeting lately witha Clergy man of these parts asked him Now what doth Caddeâ— Harris do they live still in Dublin Yes Were I their Bishop concutiens illustre capus as if every haire of his head was able to transport them beyond the Aequinoctiall I would send them further off O ne savi magne sacerdos by your favonr my Lord Caddell Harris are civill men as they be Catholique Priests so are they the Kings liege subjects may live in Dublin or where else they think good within his Majesties Dominions so long as it pleaseth the State to permit them being far froÌ„ yeelding to the new usurped tyranny which your Friar Bishops have of late brought into this Kingdome contrary both to the Common Canon Law as hath bin demonstrated unto them not only in my late Treatise against The. Flemming his Excommunucation but since that again most learnedly vivâ voce in the Castle of Dublin by such as had the examination of the cause Neither is it to be thought that his Majesty will endure such a diminution of his honour by any one Friar or the whole pack of them together In the mean time God help the poore Priests who live under the Friar Bishops to whom if they do not yeeld in these the like practises they shall presently heare Veteres migrate coloni you shall no longer live in my Diocesse which thunder-clap was first heard in Dublin but afterward roared into other Diocesses yea such vexation they find especially Priests of the best parts deseres under the Friar Bishops as to redeem their vexation to purchase their peace they are contented to forsake their Parishes poore entertainments and to betake themselves unto other Diocâ—sses where the Clergy-Bishops governe leaving all to the Friar who defires to doe all and have all And for this cause is it together with ambition and an unbridled lust of domineering that so many Friars at this day do hunt after Bishopricks as weare credibly informed both from Paris Rome no fewer then eight of them to the admiration of strangers deteslation of all modest men importuning the Pope to be made titulary Bishops of this Kingdome there being searce so many places vacant which if they do obtaine the utter ruine of the Clergy in those Diocesses can not be prevented whom they will not faile to supplant to furnish their places with Friars each one of his own order as we heare dayly to be practized in the next Diocesse of Kildare whose Bishop being a Dominican Friar creates his Friars
permissionis handled by the Schoolmen in particular by S. Tho. 1 a. 2 ae qi 19. q. Now then Tho. Flemming by Gods permission raysed unto the second See of Ireland at the age of 30. as it was determined by his brethren Camerado's in the Friary of Lovaine to extirpate the Clergy of the Diocesse of Dublin in their place to bring in the Friars a plot though not very ancient yet before him invented by an VIster Friar called Hugh Cavall residing in Rome designed by this present Pope Vrbanus 8. about tenne yeares agoe Archbishop of Armagh Primat of Ireland to which purpose the aforesald Hugh Cavall obtayned a Bull by most sinister information to make his Friars Parish Priests thorough the Diocesse of Armagh but being prevented by death before he could pay his way bid his friends farewell in Rome albeit not two houres before his death he writ a letter unto the Pope beseeching him to nominat in his place Friar Rob. Chamberlaine for so they call him albeit a most Irish a tyronicall Friar of Lovaine a successour was designed in his place a Priest of the Clergy called Hugh O Reyly the present Metropolitan of Armagh Primat of all Ireland who being a man not so wedded to Friarly plots against the Clergy albeit in many respects obnoxious unto them that policy of making Friars Pastors either ended in the first Hugh or at least hath taken a time of breathing in the second Hugh But our young Friar Flemming an Archbishop of 30. yeares though now neere 40. nothing doubted to under-go that burden which Milo himselfe was scarce able to beare in a preposterous zeale he would yea that he would without either Bull or Breve banish the Secular Priests out of his Diocesse which to performe litle seen in the Canons of the Church lesse in the common Lawes of England not distinguishing the Keyes from the Sword nor Regall power from Episcopall jurisdiction like a Prester Iohn King of the Aethiopians he presently banisheth 3. Priests in his opinion the most fussicient of all his Diocesse these living in Dublin the mother Citty of all Ireland not doubting but they once sent away all the rest would be glad to kisse his hands and to depart with his benediction Vpon such lofty termes stood our Archbishop leaning his head upon the elbow of his Regulare brachium his Friarly arme an Arme or rather an army always ready prest to second such attempts as Episcopall jurisdiction could not support yea to such an over-weening presumption did he and his Friars at last arrive relying upon their own conrage strength as they doubted not to complaine unto the temporall Magisttate bring their matter unto the Castle of Dublin confident that the State would joyne with them to the ratification of the banishment of the Priests for which cause after that a Lay-man had first broken they ce made the way for them there appeared plaintiffs William Malone aliàs Morgan alias Browne Iesuite Iohn Preston Franciscan Patrick Brangan Edmund Doyle a payre of Priests adhering unto the Friars faction all these I say presented themselves before a grave Counsellour of State for as then the Lord Deputy was not arrived before him they accuse M r Doctor Caddell my selfe Paul Harris for the third whose name is Doctor Cabil had made his peace before with the Archbishop they lay to our charge facta infecta but all in the cloudes of generality as those usually do who meane to calumniat to deceive alledging that we were disobedient turbulent seditious facticus of unquiet spirits enemyes to peace In conclusion such as did trouble all Israel and therefore not to be tollerated or longer endured But it was their chance good hap for us to come before such a Iudge as held it necessary to keep one eare for the Defendants first to heare our answers before he condemned us having understood that of the Morall Philosopher elegantly expressed by the Tragedian Qui statuit aliquid parte inandita altera aquumlicet statuerit hand aquus fuit who determines any thing either party unheard though what he determines be just yet himselfe is not just Seneca in Medea Wherefore it pleased that honourable Gentleman after he had given audience unto our Adversaryes first to send for me Paul Harris to understand what I could answer in my defence not having in nine yeares before beene within the Castle-gates of Dublin and next after hee sent for Peter Caddell who as I take it before that time had never seen the in fide of the Castle and having heard our Apology the Bells for the present were stayed that great heat of hasty exile began to coole-Soon after this was the happy arrivall of the present Lord Deputy before whom upon petition both the Archbishop Flemming we the Priests were commanded to appeare and our grievances propounded were grationsly heard And for that time dismissed with grave advice how to frame our obedience unto the Lawes of God the Kingdome and the Archbishop Flemming in particular was most seriously required to reforme his errours but he standing upon his justification wanting at that rime as it seemed unto us the gift of utterance expression of himselfe whether not acquainted with such an audience or that he was not provided of his Answers he desired againe to be heard and soone after by the Lord Deputy his command we were remitted unto the hearing of the now Lord Bishop of Derry Sir George Radotiffe Knight before whom all our causes were examened at full according unto the Canons of the Church and the ancient and immemorable Lawes of these Kingdomes And the Archbishop Flemming convicted partly by his own confession partly by witnesse that he had offended in these two points First in taking upon him to banish the Kings subjects by Episcopa◠authority out of his Diocesse Secondly in erecting a new Tribunall and drawing all causes of Ecelesiasticall men though meerely civill and temporall unto his Consistory there onely under paine of Excommunication to be heard and determined Neither can the aforesaid Thomas Flemming parallel his cause with S. Thomas of Canterbury I appeale to all such as have written the Legend of his life and death whether it be Capgravius the Breviary or our English Chronicles neither out of any other History shall our Friars ever be able to prove that in both or either of those two points there was any controversy at all betwixt King Henry the second and Thomas Becket Thomas Flemming the Friar being the first onely Bishop since the conversion of these Nations to Christianity that ever was bold to teach maintaine or practise the same for which ause if he should suffer death notwithstanding all the ruissian-like boasts of him his Friars hee should dye a malefactor not a martyr But the little feare of any such punishment to befall him causeth him