capacities of government in him the one spirituall the other temporall by both these hee hath supremacie and this supremacie is chiefly exercised in the calling presedencie and dissolving of the great assembly of the three States which high Court is not competently correspondent to both those powers in the King vnlesse the Parliament consist collectiue of spirituall and temporall persons which it hath anciently if the Booke De modo tenendi Parliamenti be authenticall for hee makes the vpper House consist of three States the Kings Majestie the Lords spirituall and temporall and lower of the Knights Ridleys view of Ecclesiasticall Lawes Procurators for the Clergie and the Burgesses which both answer the Kings mixt supremacie So that as he is supremus Iustitiarius totius Angliae in relation to the temporalitie so he is supremus or as Constantine truely entitled himselfe in the Councell of Nice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eusebius in vita lib. 3. in respect of the spiritualty But to returne to my present promise and purpose which was to shew how the actes of supremacie haue their effects in the Ecclesiasticall jurisdiction derived to the Clergie And I am now to shew what effect the power of promulgation of lawes hath which is in consenting confirming and publishing the Ecclesiasticall Lawes which are agreed vpon in Convocation not excluding the advice of the Parliament because the State Ecclesiasticall is not an independant societie but a member of the whole hence it is that they are called the Kings Ecclesiasticall Lawes by which the Clergie is ruled in spirituall causes according to which they exercise their jurisdiction in foro exteriori contentioso hence it is that for this last age the Ecclesiasticall Lawes of this Realme haue so well agreed with the Civill because they passe not without the assent of the supreame governour And it were much to be desired that Christian Princes would not onely permit lawes to be made and giue force to them by their authority but also that they would vouchsafe their personall presence to be Presidents in all assemblies for that end for then they would proceed and conclude to better purpose As Isidorus Pelusiota writes to the Emperour Theodosius the younger to be resident and president in the Councell of Ephesus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that if hee would be pleased to take so much time as to be present there he did not feare that any thing that should passe could be faultie but if he leaue it all to be done by turbulent suffrages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isiodoru◠lus lib. 311. Who can free that Synod from scornfull scoffings his counsell was safe and seasonable because the cause of feare was very probable and eminent For in a Councell where there is a Monarchicall authority a supreame power in one there will be more dispatch in deliberations more expedition in executions than where multitudes of equals sit alone for they will be many of them over-wise and most over-wilfull to agree in one poynt when as every singular person will broach his particular project and propose it as a publick law with resolution to be a recusant to all their lawes if they will not be Protestants to his and so it comes to passe too often that they are forced to yeeld to one another or else no law should passe Hence is that multiplicitie vncertainty confusion contrariety of lawes in some diseased States than which nothing discovers a State to be more desperately declining though they are good in their particulars for they shew the multiplication of ill manners which per accidens begot them and they are likely to make them worse because they being appointed to amend them are disappointed and disabled by their owne crosse contrarieties As in a naturall body over-growne and over-flowne with ill humours If a Philosopher that considers onely a body neither sick nor well giues that which is good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Hippocrates calls it and when he hath done an Emperick come that considers it as sick but he knowes not of what nor the temper of the constitution but boldly and blindly giues one medicine to all for all diseases and at last the judicious Physitian come and consider it as it is and know what to doe hee must first vndoe all the other haue done before hee dare administer that which should first haue beene taken and by this time the body is either past cure or desperate conclusions must be tried to recover it Therefore happy is our State Ecclesiasticall in whose Convocation our supream Soveraign is President so that the Lawes passing with his royall consent are certaine and easie to be obeyed by reason of their rarenesse and paucitie which makes them pertinent distinct and free from confusion And therefore I doe not a little marveile at learned Baronius Baronius Annal Anno. 528. that since hee doth not deny Iustinianus the Emperour the power of making Ecclesiasticall Lawes he should so scrupulously and busily inquire what should moue him to meddle with the making of them when as I doe not doubt but the Clergie then might request him to it This last act of supremacie is to receiue appeales and giue determinate decisions and this hath its effect and is exercised in the Ecclesiasticall Courts And they doe not exercise any power that is not derived from this supremacie either immediately or mediately So that as the lawes they execute are the Kings Ecclesiasticall Lawes so these Courts are the Kings and all the processes and courses approved by his Majesties Lawes Therefore now there is no ground for a praemunire in them though the words of the Statute runne to Rome or else-where for by else-where seemes to be meant the Romish power Babylonem◠Gallicam vt Petrarch epist 123. or Court which was not then at Rome because the Popes seat was then at Avignion in France and not our Bishops consistorie For I beleeue that Statute was made to free them as well from the forraine vsurpation as any other of the King Courts as the pragmaticall sanction of France doth which was of the nature and in imitation of it about the same time by Charles the seventh brother-in-law to Edward the third But however it was then meant I am sure it cannot extend to them now vnlesse wee will deny the Kings supremacie over all causes and persons Ecclesiasticall and then they are not the Kings Courts but if we grant the Kings supremacie wee must deny that any of his Courts can incurre a praemunire A prohibition I grant may lawfully lye there because it is safe for the whole State that every jurisdiction should haue its bounds and keep or be kept in them But yet I will not say so in generall but we must admit them with distinction of prohibitions one of Law another of Fact Now that prohibition which is of Law according to the expresse words of the Statute which are commonly large enough
that of the pluralitie and non recidencie which the Archbishop of Canterbury limits by his approbation Eccl. Anglicanae Canon 41. And priviledges must necessarily bee where there are multitudes of statutes which be so strict in point of injunction as if the makers of them had not considered that politique lawes must be made with respect to morall possibilitie as what men may doe and yet the punishment of their transgression is not expressed but left to the pleasure or displeasure of the King But these are not the priviledges that the Kings royall prerogatiue doth grant as immunities and impunities for then the lawes should bee onely punitine if there were onely vse of protections and pardons but as lawes are also remuneratiue so Princes haue power to reward after a priviledging manner and chiefly in our Kingdome where it seemes to be on purpose omitted by the written lawes and left to the Kings pleasure and power especially concerning Ecclesiasticall persons who haue most neede of them and may now as freely enjoy them as any other persons For though heretofore it was prejudiciall to our Kings to grant priviledges to all Ecclesiasticall persons when they were so encreased in multitudes and overgrowne in magnitude for the whole Kingdome and the Popes would confirme them as irrevocable yet now they are but few in number and small in power and the King may call them in when hee pleases This want of these priviledges hath beene the cause of much evill in the Church and the more they are impeached by those that professe themselues the maintainers of the Kings peace lawes and royall prerogatiue the more will the state Ecclesiasticall runne to ruine And they are much infringed in our Vniversities which I am forced to complaine of with feare lest that fall out which happened to the Vniversitie of Prague which was vtterly ruined by Charles the fift taking the priviledges away at Don Leâ—is desire Whereas Francis the first of France fearing and favouring the Vniversitie of Paris restored all the priviledges which Lewis the eleventh had taken away vpon a just ground of sedition Dino hist 〈◊〉 which hath made it to reviue and flourish ever since But there are some politiques that hold it a needlesse thing to bee any way indulgent to silly Schollers Cujaâ— sent 1. tit as Cujacius saith out of Galen that they expressed weake men vnder the title of scholastici they make meere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iohn a noakes of them but the fault is in themselues according to the French Proverbe Qui se fait brebis le lâ—up la mange For though the Clergie bee weake of it selfe and tempt the contemners of it to over-top and over-turne it Yet since we haue a pious prudent Prince that is royally ready vpon the first appeale to protect and relieue his poore Clergie we are not to be pittied if we neglect to implore his supreame assistance And thus it is something evident how the honour of the Clergie annexed to the power of order is granted and sustained by the Kings lawes and royall prerogatiue I must now in briefe shew the like of the honour annexed to the power of jurisdiction § 6 The power of jurisdiction which I doe here intend is not that deligated power which is in Bishops Vicars or Officialls nor that power Archdeacons and Deanes enjoy either by custome or priviledge but that ordinary power which is in Bishops To this power of jurisdiction there is honour annexed by the lawes of this land and the Kings royall prerogatiue which I divide as before into revenewes ordinary and priviledges the revenewes are their temporalls and part of the perquisits called the Census Cathedraticus the first of which are given and granted by the Kings royall bounty confirmed by the lawes the other are set downe and approved by the same lawes Bishops temporalls are annexed to their sees by the Kings gift Stanford praerogat cap. 1. and are as it were their Gleab but are indeed their Baronies which they hold of the King in capite and performe services for them and therefore they are as it were wards to the King during the vacancie quae ratione Baroniae as Linwood ad Episcopum spectare possunt Linwood de immunitatib Ecclesiae Duarenus de beneficijs l. 3. c. 11. Dominus Rex custodiam habet as Duarenus sayes of the Kings of France Princeps quà m diu vacat Episcopalis sedes feudorum lege praediorum omnium administrationem suscipit But these temporalls are not to be restored till consecration and so seeme to be annexed to the power of order in Bishops Augustinus de Ancona de potest P. P. quaest 22. Art 9. for their consecration according to the scholasticall Canonists is but perfectio characteris which they at first received when they tooke the order of Priesthood and so seeme not properly annexed to the power of jurisdiction for before consecration vpon election and confirmation they may exercise the power of jurisdiction though not of order Episcopus electus confirmatus potest exercere quae sunt jurisdictionis Panormitan in Decret Ver. Cons §. 6. non quae sunt ordinis Episcopalis ante consecrationem as Othobone vpon Linwood suspendere potest à beneficio non ab officio Linwooâ— de constiâ— Glanvil cap. 10. quia ab officio suspendere est à potestate ordinis ordinaria But Iustice Glanvil seemes to intimate that they were restored when they were but Lords elect because electi ante consecrationem homagia sua facere solent but whether it were de jure or de gratia as the learned in the Common law distinguish I leaue to them to determine and thinke it great happinesse for the Bishops and the great honour of our moderne Kings that they are so fully restored at all since they haue as much power and may pretend as much reason to seise the temporalls into their hands as well as others But our Royall Soveraignes pious Father 1. Iacob set a good example to his Majestie to follow for in the first yeare of his raigne hee enacted a statute to prevent all diminution of Episcopall revenewes though it were to alienate them to the vse of his Crowne yea though it were but in exchange for impropriations a course which was too common in Queene Elizabeths dayes insteed whereof our Kings haue out of royall indulgence given some licences for Mortmaines If this redresse had come before they had beene too much impaired Bishops would not haue desired so many Commendams nor Rectors of Parishes made vse of the statute of pluralitie To their revenewes in these temporalls there are many honourable priviledges annexed as they are Barones So that Bishops haue the priviledges of Barons in the Parliament and that vpon good ground since they hold of the King and performe the services belonging to them Mathew Hen. 2. as Mathew Paris Episcopi de rege tenent in capite Baronias faciunt
A DISCOVRS OF THE STATE ECCLESISTICALL OF THI Kingdome in relation to the Civill Considered vnder three CONCLUSION With a DIGRESSION discuss some ordinary Exceptions against Ecclesiasticall Officers By C. D. OXFORD Printed by WILLIAM TVRNER 1632. TO THE RIGHT HONOVRABLE WILLIAM EALRE Of Salisbury Viscount Cranburne Lord Cecyll of Esendon Knight of the most Illustrous order of the Garter and one of his Majesties most honourable Privie Councell MAY Jt please your honour to accept this present discourse as an acknowledgment of your Lordships favour toward your observant Chaplaine Calybute Downinge ERRATA PAge 8. marg for text read tit p. 15. marg Clayman r. Clapmar p. 17. l. 15. with state r. with the state p. 21. l. 28. sic stantibus r. exstantibus p. 35. l. 18. ordinar r. ordinario p. 39. l. 1. adde à farlo p. ib. Angliterra r. Anghtlterra p. 52. l. ib. 506. r. 56. p. 54. marg Hallandes affaires p. 55. l. 8. Common r. Cannon Law p. 57. l. 18. Conatus r. Canutus p. 59. marg Francum r. aerarium p. 67. l. 24. vacante prudentissimus r. vacante sèd prudentissimus p. 94. l. vlt. dele Othobone vpon CONCLVSION I. That the present State Ecclesiasticall is most convenient and best agreeing with the Civill WIth what care and cost States and Kingdomes which vphold and deriue all happinesse to man as he is a sociable and a feeble creature should be preserved none will deny especially since they are so subiect to decay and the causes of their corruptions so many Senec. 117. For the best tempered common-wealth is not of any constant continuance but full of changes and those at last will after much interchange driue it to a full and fatall period It must therefore be the care of the present age to see that it receiue no detriment while they are in it for they may be so orderly as to worke no distemper but conserue it in health and wealth or at least keepe it from decaying so fast that hauing some space to fall in it may recouer or they haue time to leaue it and not fall with it nor that fall vpon them Now the best and all that the passing present generation can doe is either to keep things in primitiue order or to reforme them to it The first of which is difficult to continue the other dangerous if long discontinued Yet Kingdomes must be conserued by the same meanes they were first established This labour and care then will be to best purpose bestowed vpon those parts which are most necessary and vphold the rest as essentiall and fundamentall being the principles of the intrinsicall Polybius hist lib. 6. originall good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or vpon those that secure these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Now that which is the only infallible ground of these must needs be principally respected by those that are vndertakers for the publick good and that ground is true religion For though ill manners are per accidens the cause or rather the occasion of making good lawes yet they are better in the executing best when they are obeyed Now good manners cause obedience and religion naturally begets good manners But religion cannot subsist without publicke exercise and action and so the requisites of it are times places and some persons who ought to be set apart and wholly and only employed in it and they must be in the common-wealth Therefore seeing it is necessary to haue a religion to preserue the common-wealth it is by consequent as needfull to haue preservers of religion that may not overturne the common-wealth by over-ruling religion Wherefore the choyse of them need to be such that seeing they must be in the common-wealth of necessity they may be of the common-wealth for vniversal safety And yet they are to be distinguished by state and order to avoyd confusion nor doth their distinction enforce any such forme after which they must governe as may be inconvenient to the publicke civill state wherby they are to be governed The care then of the wisest must be either to preserue or restore that forme of the Clergie which is most agreeing with the Civill State and that will be the meanes to prolong the age of the state by preserving concord amongst societies which though at last it come to an end yet it may out-last our dayes that we be not vnhappy in the ruine for it is not the infelicitie of States which haue long flourished to decay or be destroyed but the vnhappinesse of those men whose hap it is then to liue and not when they did flourish Now every form of a Clergie will not fit Guic hypor Poli◠but according to divers countries they haue beene severall suiting to the times places and people The first was the originall domesticall discipline in private families before God made choyse and actually seperated a nation to himselfe Then followed the Leviticall Nationall regiment compounded and composed of and according to the ceremoniall and judiciall Lawes Both these formes were not onely by divine permission but also by injunction yet not perpetuall nor vniversall Neither of these then are the government wee must chuse because that manner of exercising religion is antiquated Wee must then consider of a forme which may be conformable to the present practise of true religion in relation to Gods revealed Will which may withall be suitable and sorting with this present state that so they may vphold each other which forme though it be not according to Gods expresse mandate in some particulars yet it is not against it but with his permission of approbation in all points Now in this choyce wee must consider our owne forme of Civill government and whether that were imposed vpon vs by conquest or by our owne consent if by free consent and of long continuance it will with more ease and desire be preserved and with greatest danger altered if by conquest the more Charters of priuiledges are granted to vs vnder it the more it is endeared to vs and esteemed happy but our forme of state is a free Monarchie erected and protected by free consent and of long continuance not imposed but confirmed and reformed to the first freedome by a happy conquest and endeered vnto vs by many Charters of wholsome priviledges Therefore we must seeke or keepe such a forme of state Ecclesiasticall as may best accord with our forme of Civill policie § 2. This present State Ecclesiasticall is the forme that best agrees with the Civill State That it is not against the Law of God I will not goe about to proue because I hope none will question it neither that it was the primitiue and should still be the government of the present visible Church because that is already proved without all contradiction by many most judicious and orthodoxe Divines But my vndertaking is as farre as God shall giue mee vnderstanding to discourse how it is most agreeable with this Kingdome All States haue alwayes endeavoured
as to haue a religion so to frame the exercise of it according to their owne dispositions but some with more doting indulgence haue at last changed it into that which they were most naturally disposed to and did not alter and order their inclinations by it As the foure grand Monarchies the Chaldean with whom the Persian may well be joyned these turned the acts of religion into philosophicall considerations enquiries and explications of nature The Egyptians a principall branch of these Monarchies and from whom some thinke the Chaldeans were derived and that Belus Neptuni Libiaeque filius in Babyloniam colonos ex Aegypto traduxisset Diodorus Siculus Biblioth lib. 1. ex iis Sacerdotes quos Chaldeos Babylonii vocant qui more Aegyptiorum astra observant c. These Egyptians naturally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 superstitious in religion curious in mysteries transformed religion into all kinde of superstitions and by trying conclusions and chymicall experiments vpon it conceited the substance of it into vnexpected phansies furthered by mimicall expressions leading into and leaving in mysticall mazes The Grecians by nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intelligent able to find out and loving to contend drew religion into disputes and would beleeue no more than they could finde out by search of reason and apprehend by force of fansie and that they obstinately maintained by a wanton working wit which they might with more ease doe seeing their language was so happy for expression The Romans by nature inclined to dominion fitted the frame of their religion to a Monarchicall forme vnder the Pontifices Cujaci◠Origin lis §. 1 yet they seemed to seeke a Monopolie of all the Gods in the world for they receiued and worshipped the Gods of all the nations they conquered These nations framing religion to these ends August Civit 〈◊〉 20. cap had a forme of government vnder religious persons sutable to further contriue and compasse by all meanes their particular purposes and therefore they gaue them power of a most large extent yea they were ruled by them for the Chaldeans were originally Priests and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a priest Synesiu 126. and a Prince were all one with them So the Magi amongst the Persians the Priests of Apollo at Delphos amongst the Grecians did what they would Pomp◠Orig. I. And the Romans were led by their Pontifices and Augures but it was whither they would namely to a Monarchy Wee having not the ends of these nations in our religion must not vse the same forme of Clergie For I conceiue the aime of the best and wisest with vs is to preserue the Church and Common-wealth together Now that cannot be where the state of the Clergie governs but where it is governed Our ayme being such let vs consider what forme will be best governed vnder this Common-wealth There are but three distinct formes of Ecclesiasticall government in Christendome as the Monarchicall Aristocraticall Democraticall of these the Aristocraticall is most conformable to the rule of this Realme In proving of which assertion I will not onely insist vpon the proofe of past and present experience that it is so but discourse in reason why it should be so And first in opposition to the other formes of Ecclesiasticall government what they are likely to produce woefull experience hath long since felt in the one and what we may expect vpon probable conjecture from the other is not to be desired by any that vnderstand and loue the happinesse of this Civill State For all their principles fundamentall in their grounds of augmentation in their growth of conservation in their heigth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius lib. 6. and of reparation in their decayes are most dangerous for this Monarchy and the causes of their corruption would be so incorporated into the body and bowels of the Civill State that if it fall not before them and into their hands they would goe neere to pull it downe with them when they fall Not so speake of their power which they must haue and the exercise of it either in an ordinary and lawfull course or by indulgence or vsurpation and the manner of their proceedings in the execution of it what instruments they vse in counsell and action how much they trench vpon the power vndermine the government countermine the proceedings countermand the edict and confront a Monarchy I leaue it to wise and actiue men to consider § 3. First to speake of the Monarchicall which is now the Papall government How this Monarchicall forme hath heretofore agreed with this State all know and it is not likely that it should now so well accord with it because the reasons of that little agreement then the present particular interest in which this State vsed that Monarchy are ceased for then wee aymed to enlarge our dominion by the right of succession in France by the right of conquest in Scotland and Ireland But the causes of disagreement still remaine and are in their part aggravated to an vtter opposition so that as before it was dangerous so now it is a desperate case to re-entertaine that forme of Clergie which can and will rule vs and must necessarily alter and so worke the ruine of the present state Vnder this forme this Kingdome was no Monarchie but a Province vnder a forreiner an vsurper and a tyrant This was our best condition when that Clergie ruled vs though as favourable as they could or did any Monarchy in Europe The lawes and priviledges of the land were continually broken and infringed by them especially those lawes that did most immediatly vphold the Kings prerogatiue Against them they continually promulgated particular edicts for the decrees were too generall to be applyed to occasions and therefore they added the decretals so called because they gaue wings to the decrees for quicker dispatch And wee shall finde Duare◠benefici◠Prooem that most of the Decretall epistles which concerne Iurisdiction were written to English Prelates And as I conceiue some reason might be because the lawes of this land are more contrary to the Canon Law than the lawes of any other States in Christendome being they are more ruled by the Civill Law from which the Canon is derived and so more causes might arise here amongst vs either out of the contrariety of the Lawes or out of the narrower extent of the Common Law and also partly out of the ignorance of the proceedings of this State which was then likely to be most because intercourse and intelligence with Rome for that time was abridged for Henry 2. being then at variance with Thomas Becket who was sheltered by the Pope Alexander the third permitted not any Legate to reside in the kingdome but as soone as Vivian was arrived he was questioned and that by the Bishops of Winchester and Ely how hee durst land without the Kings speciall licence And partly they writ the oftner to English Bishops because they suspected them and justly to be
Courts And for the same purpose should Deanes and Archdeacons haue their Officialls and Commissaries to inable them to runne through the multiplicity of causes to cut off or shorten delayes which in all businesse especially Ecclesiasticall are tedious and odious and indeed none are more able in this case to assist them and reduce causes into order brevity and paucity as Thomas Aquinas saith Thomas Aquin. praefaâ—â— to his summes he compiled his summes to compose and compound controversies take up and take away all questions And therefore I doe not a little wonder at Dr Cowell who was a most able Civilian that hee should account Commissaries or Officiales foraneos onely vsefull in petty peculiars D. Cowel interpretaâ—â— verb. Commissary Duaren de benef officijs Eccles exempt from the jurisdiction of the Archdeacon otherwise to be superfluous and a needlesse vexation and oppression to the Countrey surely hee meant it of some such scandalous Courts as Duarenus another learned Civillian complaines of Auditoria Vicariorum officialium Episcoporum quaecunque profana tribunalia imposturis strophis forensibus longè superant but let him thinke what hee will I am sure wee see of what good use they are and yet they are not Lay Elders of the Church Exception 2 Excep 2. Is that the power of jurisdiction Ecclesiasticall cannot be granted to Civilians that are meere Lay-men I could soone answer this exception by denying them to be meere Lay men and so I would if I had no other way to avoyd it But I am willing to giue them satisfaction and not to cavill and therefore will answer punctually and that I may so doe and they so apprehend it let them but consider with me a two-fold power of Ecclesiasticall Iurisdiction Linwood lib. 5. tit ne praelati vicar verb. ad firmam Ordinary and Delegate the later and lesser of which may be lawfully granted to them especially if wee admit the differences and degrees of their commission which are approved and practised in our Church government both in relation to the power that grants them and in respect to the extent of the grant First for the power granting them they are all originally derived from the Crowne but some haue their power more immediately as the high Commission haue it vnder the broad Seale others receiue it more mediately from their Bishops Deanes or Arch-Deacons so for the largenesse of the Commission which is ad vniversitatem causarum tanquam Ordinarius as the audience of high Commission and not without good reason since no cause is to be there determined at least not sentenced without the consent of foure of the Quorum which must be as I am informed Bishops There is also a speciall Commission of Oyer and Terminer in some particular causes and lastly a Commission which according to Law is restricta ad instantia Linwooâ— tit de verb. ofâ— alis which Linwood Officiall of Canterbury saith doth belong officialibus principalibus which wee call Chancellours Yet I doe not beleeue by his leaue that they are so restrayned as to a bare cognition without a definitiue sentence though the phrase that is vsed to expresse busines of instance be matters of Ecclesiasticall cognizance for Cognitio non est jurisdictio Cujaciâ— orig Iu◠§. Consâ— especially now since the Lawes haue ordered that if they be not in sacred orders they must be assisted by a surrogate who is a Minister and hee is to pronounce sentence as principall Iudge which practice hath made some of opinion that anciently they were assistant to the surrogate as assessours which seemes probable because the exact knowledge of the Law is expected from an assessour not from the principall Iudge according to the most conscionable Casuists Ignorantia juris non est peccatum in judice sed est in assessore Navarâ— Iudicis as the Masters of the Chancery who are assessours to the Lord Chancellour or Keeper there is required exact knowledge though not in the superiour Iudge as in the assessors of the Praetor amongst the Romans Cujâ—cius obser lib. 23. c. 40. Si Praetor per imperitiam iuris iniquum ius statuerit non punitur assessor eius punitur quia adsessor se pro iurisperito agit So that though this opinion be not true because surrogates are not of such antiquity yet I perswade my selfe without any doubt that they were and still are tanquam assistentes assessores Episcopis Archidiaconis though they haue also a delegated power And this kinde and degree of Ecclesiasticall power may be granted to them though they be meere Laymen and I beleeue our Church would not haue disliked the Geneva government so much if they would haue chosen such for their Lay-Seigniours as had knowledge in the Ecclesiasticall Lawes as if Doctor Hottoman professour there and Reader of the Civill Law had beene joyned with reverend Beza then Divinity Reader Exception 3 Another Exception of like nature and moment arising from the former is That vnder the colour of a delegated jurisdiction they take vpon them Episcopall jurisdiction and performe all the offices of a Bishop in relation to Ecclesiasticall government This Exception is not peremptory but dilatory and declinatory full of impertinent surplussage vrging nothing or that which is false for no man will vndertake to answer what they doe but what they should doe iure nostro Ecclesiastico I am sure iure nostro Canonico Anglicano publickly knowne and by the old Canon Law which may here be practised where it is not contrary to the Lawes of the Land they are not to exercise any such power 25. Hen. 8. c. 3. Summa bullarij in Pio 4. as doth personally belong to a Bishop either as he is Dioecesane or as he is Ordinary in puris spiritualibus neither doe I finde that ever any Vicar did vsurpe or desire any such power but onely Cardinall Wolsie who desired Clement the seventh suo vicario vniversale in Francia in â—ngâ—â—terra in Germania mentre stava in prigione Guicâ— hist li his Vicar generall in France England and Germany during his imprisonment which he could not doe by Law being his Ordinary and suspended if not ab officio yet á beneficio and if it had beene lawfull yet the Pope had betrayed his weaknesse much to grant it with that condition during the time of his imprisonment for the Cardinall would without doubt haue endeavoured to keepe him there still to continue his vicarship And moreover this I finde that by the Canon Law sede vacante the Deane or Chapter is successour or rather administratour to the Bishops in their jurisdiction and guardian of the spiritualties and no marvell for they are called fratres Episcopi Cardinales Papae they can dispence in causis Episcopo reservatis and call Convocations Laeliuâ—us de pâ— capitu to which the Bishops Vicar may not be admitted possunt condere revocare statuta And during the life of the
is the prohibition that is lawfull as for a prohibition of fact which is by a sophisticall suggestion sucked and squeezed out of the copie of the libell without judgment of the Kings Courts vpon it in my opinion is not right and is many times the cause of wrong either in vnjustice or delayes yea and in abusing of the Statute with the Kings Courts For the prohibition of law the most I conceiue it inferres is to make all the proceedings voide Coram non Iudice But if I might know what degree and quality of offence it is for a Court temporall to hold plea of a meere Ecclesiasticall cause I should more easily apprehend the scandalous nature of the ground of a prohibition which it may be is the same with a writ of errour in the temporall Court since that a consultation doth not ensue vpon that but after a prohibition grounded vpon a suggestion So then all the proceedings of these Courts haue their power from this last act of supremacie as well in primatiue processes of inquisition as in punitiue processes of execution As this authentick authoritie is most seene in the proceedings ex officio which are not onely nor alwayes by oath as many are mistaken These are by immediate commission where an Ecclesiasticall cause is criminall and prosecuted as criminall And so also the vtmost punitiue processe Ecclesiasticall which is a writ de Excommunicato capiendo is evidently derived from the Kings power and issueth immediately from his favour to the Church that it may be more easily obeyed Iohan. de Paris de Potestate Reg. Concl. 1. and is divers and variable in sundry governments and executed by temporall power being nothing of the nature of the spirituall excommunication but an accession concessâ permissione ex devotione Principum as Iohannes de Parisiis saith against Boniface the eight As for the judgements of Bishops consistories as they are derived from the power and law of Christ the great Bishop so they are like the judges of them who are rather arbiters amicabiles compositores as Panormitane then Iudges ruling by the austerity of authority so that poore defendants may flie to them as to their altars who are Ministers of the altar and in this sense that which Architas speakes is most true Arist Rhet. lib. 3. c. 11. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem esse arbitrum Aram. And though they haue no forcing power but from the King and no power of any force against the King yet the greatest and best Kings haue yeelded to them in their advice not as Prelates but as they are Fathers in God as Alexander the great said to his father King Philip 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Chrysost 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 farre vnlike the Bishops of Rome who will rule the highest Princes and yet professe themselues servants of servants which makes mee call to minde the observation of the wisest King Salomon Proverb 30. that one of the chiefest instruments whereby the earth is shaken is a servant that rules over Princes And as they vsurpe rule so they vsurpe the sword of temporall Princes and carry it in the spirituall scabbard and drawing it doe more hurt in their passion then they can help by their priviledge when as they found it soberly and orderly put up by St Peter when Christ was at his elbow to heale the greatest wound that hee could make Thus is it somewhat plaine how Ecclesiasticall power is derived from the King as hee is supreame head in lawfull and full authority over all causes and persons which double power in my conceit the custome of the ancient Persians at the death of their Monarch doth fully and fitly expresse for the lawes are silent Brisso◠Regn◠lib. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their holy eternall fire which every one worshiped in his private house as his houshold god was put out when the Emperour died § 4 The next thing which I promised to declare was how the honour of the state Ecclesiasticall is annexed to the power by the Kings lawes and royall prorogatiue The honour of the Clergy is contained in revenewes and priviledges 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A◠lib. 1. which are vnited to their powers of order and jurisdiction which powers although we should grant that simply considered in themselues they are not distinguished jure divino yet I am sure none will deny that they are distinct quoad extensionem permissione approbatione divinâ as Iohannes de Parisiis doth distinguish the power given the Apostles into six parts in respect of so many severall acts of execution the fift of which is potestas dispositionis ministrorum secundum quosdam quoad determinationem jurisdictionis Ecclesiasticae ut vitetur confusio Ioh. de cap. 1 And as they are thus distinct according to the execution and stand so confirmed by the positiue lawes of the land so they haue distinct portions and priviledges according to the same lawes yet after a different manner especially in respect of the portion For the power of order which hath maintenance of diverse kindes as tithes oblations Gleabland and mortuaries holds them all according to the lawes of this land as due to the Clergie for executing the power of order but by different acts of these lawes as Mortuaries are permitted and Gleablands granted Tithes and Oblations confirmed and all constrained to be paid Now tithes that are onely confirmed by the Kings positiue lawes are supposed to bee due by some other law of higher nature then the Kings which is not any forraine law Bellar. de Cler. lib. 1. cap. 10. as Ius Ecclesiasticum as Bellarmine calls the Cannon law it must bee then by law divine or immediately arising from supernaturall and morall considerations which law we grant to be positiue yet not meerely humaine Hooker Eccles Polit. l. 1. §. 15. nor changeable in respect to us and they must necessarily runne into many grosse errours that take onely such lawes for positiue as are invented by men and thence conclude them mutable And therefore I presume that the learned Selden doth so vnderstand the positiue law by which hee holds tithes to be due not in opposition to divine and morall but as specially diverse from it as it partly appeares in the whole drift of his history where I doe not beleeue that any can finde that hee ever delivers his judgement denying them to bee jure divino so that in my apprehension and I hope not against his intention he may doe the Church much good in his relating what wrongs the Clergy in all ages haue sustained For his history is onely de facto what hath beene done hee giues not his judgement de iure what ought to haue beene done which if he had he would assuredly haue pronounced for them and this I am forced to beleeue when I consider his exact generall knowledge and the reverent respect he beares to