falsly usurped the name of Pastour the authour of the conspiracie made against me At last hee was condemn'd to banishment and afterwards recalled and restor'd to his citie and Bishoprique by the King himselfe Chilperic assembled another Synod to try the accusation of high treason objected against Gregory Bishop of Tours grounded upon this surmise that he would have delivered the Citie of Tours to King Guntrand where he was acquitted as not guilty and Leudastus his accusâ—r excommunicated Chilperic also upon an accusation brought by one Suâ—nigisilus against Giles Bishop of Rhemes as guiltie of a conspiracie against King Childebert caused him to be apprehended and carried to the Citie of Mentz where he assembled some Bishops who proceeding to judgement upon him deposed him from his Bishoprique and confined him to Strasbourg Didier Archbishop of Guien was deposed at a Provinciall Councell assembled by the same King at Chaalons in Burgundy 23 Childebert and â—untrand made certaine Bishops assembleâ— to proceed in judgement upon the Abbesse and her Religious of Poictiers Wee are met together say those Bishops by the command directed unto us by virtue of your power Bishop Adlabert was condemned of heresie by three and twentie Bishops at the Councell of Soissons with the consent of King Pepin and of the people and the Counsell of the greatest Peeres in France The like was done unto three Bishops accused of conspiracy against King Lewes the Piteous by the sentence of a Synod assembled to that end by his command So King Charles the Bald assembled some Bishops to condemne his sonne Carloman who was a Clergy man and his complices of the same profession 24 Sometimes our Kings proceeded to judgement by their owne sole authoritie without ever assembling the Clergy So Chartier Bishop of Perigord was accused before King Chilperic upon occasion of some letters writ against him and was acquitted because it could not be proved One Theodorus Bishop of Marseilles was also brought and accused before King Childebert but in conclusion absolved as not guiltie and accused after that together with another Bishop called Epiphanius that they had received into Marseilles Gundebaldus who said hee was the sonne of Lotharius who after they were heard examined and found not guiltie were notwithstanding kept in prison 25 We read notwithstanding that King Charles the Great called an assemblie of Bishops to heare Felix Bishop of Orgelle who was accused of heresie and being convinced he was sent to Rome to Pope Adrian before whom hee abjured his heresie and was sent backe to his Bishoprique But it may bee answered that this was not properly an accusation but only a dispute and that when the Bishops of France had heard and convinced him of errour they would doe Pope Adrian that honour as to send him to him that hee might have the hearing of him afterwards So his heresie was condemn'd yet after that at the Councell of Francfort as appears by the Acts of it 26 The Popes were anciently so stanch in this regard that they tooke not upon them upon their owne accord to judge of the crimes of other Bishops save onely such as were of their owne Diocese but suffer'd those to proceed upon them to whom of right it appertained So the Clergy of Valentia having accused Maximus their Bishop to Pope Boniface the first of many grievous and heinous crimes hee would not meddle in it but return'd the judgement to the Bishops of France They would not take the cognizance of them neither in the first place nor by appeall not even then when the Bishops of a Province were divided which yet was a faire pretence but in that case they were cal'd in judgement before the Metropolitan and other Bishops of the next Province according to the fourteenth Canon of the Councel of Antioch inserted in the Decret From which the Canon Hosius inserted in the same Decret doth no way derogate which speaks of civill controversies amongst Bishops and not of criminall causes as appears by the fourth Canon of the Councel of Sardis from whence it was taken In which case it was granted as an honour to Saint Peters chaire that if either of the two Bishops bee not content with the judgements given by some of their fellow Bishops that they shall write thereof to the Bishop of Rome to the intent that if hee thinke good they should proceed to judgement againe his advice may be followed and and that Iudges may bee assign'd unto them by him 27 But to returne to criminall matters Such processe was ancientlie used concerning them in this Kingdome as wee have said already That jurisdiction at this present is divided betwixt the Kings Officers and the Clergie of France The Iudges Royall have the cognizance of priviledged causes such as are high treasons tumults seditions ambushes bearing of armes assassinations and such like in respect of which they may proceed and pronounce against all kind of Clergy men yea even against Bishops and Archbishops As for other crimes which are called common such as are actions of trespasse battery concubinages murders forgeries and such like the official and other Ecclesiasticall Iudges have the cognizance of them If I should make these expositions in the Palace I should bee affraid that all the Proctours would cast their caps at mee to whom this is sufficiently knowne But considering the foundations of our practise are shaken and are like to bee cut up by the root it is requisit that I make this rehearsall and that I bring authorities for proofe of my assertion for feare I bee accus'd of ignorance in a matter which every one knowes 28 This distinction of crimes in the person of Clergy men is approved by the Ordinances of our Kings mention is made hereof in that of King Francis of the yeare 1540â— Article the eleventh made at Castle-Briant the year 1551. And that of Henry the third made at Paris the year 1580. Article the twentie one Come wee now to the practise of our Courts This distinction hath alwaies beene observed by all the Courts of France who have set downe the very forme which must be observed in such proceedings who have decree'd That the processe shall bee made and finished by the Iudge Royall upon a priviledg'd case before it bee remitted to the Ecclesiasticall Iudge notwithstanding the declinatory That for tryall of the case Royall it shall bee lawfull to proceed even unto torture inclusively That for the crime of Adulterie committed with notorious fornication a Bishop or other Clergy man is under the jurisdiction Royall As also for the accusation of forgerie by him committed That a Lay Iudge upon just cause may make the processe made by the Officiall upon a common offence be brought before him And notwithstanding the absolution from the common offence condemne the party accused upon the priviledged case And an infinite number of other rules which it would bee tedious to rehearse To
before the See Apostolique by Canonicall Constitutions or such as the Pope of Rome shall thinke fit to bee committed or removed upon some urgent and reasonable cause by speciall commission from his Holynesse signed with his owne hand Now hee will alwayes find urgent causes enough to draw the processe to Rome there will never want pretences if hee get but a hole that 's enough how little soever it bee hee will finde meanes to enlarge it And besides who will tell the Pope that the cause is not reasonable That were to make himselfe be pronounced a heretique It is a kinde of Sacriledge to dispute of what hee does yea it is a mortall sinne saith their Glosse upon the Canon law 19 Wee shall here entreat the reader to remember what wee discours'd in the second book touching the Popes attempts in point of justice the miseries that proceed from thence and the great complaints that have beene made of it Wee tumble backe into all these miseries againe by receiving of this Councell The Popes used it formerly by usurpation now they will doe it with some title and so with more licence Wee shall content our selves with setting downe here what was spoken concerning this matter by a whole Councell to wit by that of Basil one of the most famous that hath beene holden in these later daies Divers abuses and intolerable vexations have grown hithertowards whiles many men were very often wont to be cited and called forth to the Court of Rome and that sometimes even for pettie things and were so wearied out with expences and travaile that they thought it more commodious for them to forgoe their right or with great losse to redeeme themselves from such vexation rather than bee at the charges of the suit in a countrey so remote So it was an easie matter for slanderers to oppresse poore men So Ecclesiasticall livings were oft goâ— by wrangling shifts and evasions in the Suit while their meanes were not sufficient for the true owners or others that had right unto them to defray the charges required as well for the journey to Romeâ— as the pleading of the cause there Hence also proceeds the confusion of Ecclesiasticall order when the jurisdiction of the Ordinaries is not preserved unto them The money and meanes of Kingdomes and Provinces are not a little impaired by this meanes and which is a thing acknowledged to bee very harmefull to all Ecclesiasticall Orders those which by reason of their worth were called to the greatest affaires of Christendome were made lesse serviceable in them being too much imployed in the multitude of such causes Such evils and disorders as these gave occasion to the Fathers of that Councell to prohibit all evocations in that kind Which was confirm'd by the Pragmatique Sanction of Bourges in the title Of Causes where the same things are rehearsed CHAP. III. Of giving temporall jurisdiction to Ecclesiasticall persons 1 THis Councell useth such marvellous good husbandrie and carrieth all things so handsomely to its proposed end that at the last reckoning all the world is well appaid except Kings and Princes for whom the springe was set We have seen the Bishops already stript of their jurisdiction and turn'd into their bare shirts Now we shall make it appear that what is taken from them on the one side is restored to them on the other all to the prejudice of Secular powers whose jurisdiction is invaded and usurped upon to the advantage of the Bishop of Rome into whom as into a vast Ocean all these pettie rivers emptie themselves 2 It is a Papall maxime holden for a certain and undoubted truth That all Bishops receive their jurisdiction from the Pope They take an oath unto him else whereâ— and that a very strict one they are bound by this Councel to promise true obedience unto him at the Synods of the Diocese So that there can be nothing ascribed unto Bishops in point of jurisdiction but the Pope hath a share in it as fathers have in the purchases of their children masters of their slaves but their authoritie and power will ever receive some enlargement thereby This preface will serve as a candle to give light unto the interests of Kings and Princes in all the particular cases which shall bee hereafter specified 3 This Councel then to the prejudice of the Secular jurisdiction gives unto Bishops the power of punishing the authours of defamatorie Libels of the printers of them of Sorcerers Conjurers and such like people of those that contract clandestine marriages or are witnesses and assistants at them the cognizance of all causes matrimonial without distinction of all rights of patronage both Lay and Ecclesiasticall the jurisdiction to compell the inhabitants of any parish to allow maintenance to their Parish Priests the visitation of all benefices both Regular and Secular the cognizance of the reparations of their buildings as also the power of sequestring the fruits of the said benefices the power of examining the Kings Notaries and of suspending or depriving them of their office for some fault or crime by them committed the doing of justice upon married Clerks which have their tonsuâ—e in all causes both civill and criminall the punishing of concubinage and adulterie both in Lay men and women the seizing of mens goods and arresting of their bodies causes of Ecclesiasticall jurisdiction and that even of the Laitie Besides this Councell in very many Chapters prohibited all appeals and will have that which the Bishops do to stand without any regard of any appeale to the contrary whatsoever Also it allowes Ecclesiasticall persons to refuse such summons as shâ—ll bee sent out by the Parliaments or other of the Kings judges For the further satisfaction of such as will not content themselves with this bare proposall wee will speake somewhat of every one of these heads for the better clearing of this incroachment of jurisdiction I mean only so farre as concernes the right of our Realme of France 4 Beginning then with the first which is touching defamatorie Libels our civil lawes give the cognizance and jurisdiction thereof to the Iudges and Magistrates not to the Ecclesiastiques Some may bee will except such as concerne point of Religion but this exception is not pertinent and observe this one reason which is sufficient to confute namely that those lawes of Constantine the Great and Constantius which restraine the licence of such Libels were made in a time much like this of ours to wit when divers writings were put out concerning point of Religion against the honour both of one and other Doctour Balduin hath very judiciously observed it It is behoofefull saith hee to remember what manner of times those were of Constantine and Constantius wherein the contentions about Religion not much unlike unto ours gave fire unto the affections of both parties and which afterwards hatched those unhappie calumnies and scandalous
manifest adulterie There are an infinite more Arrests of the Courts of Parliament of this Kingdome which testifie that they are in possession of the cognizance of this crime 27 Leo the tenth acknowledging that this right belongeth to the officers Royall of this Realmeâ— where hee decrees concerning the punishment of Clerks that keepe Concubines when he comes to speake of Lay men he doth no more but exhort them to abstaine from adultery and concubinage as things forbidden by God without passing any further The Ecclesiasticall Iudges have sometimes attempted to usurpe this jurisdiction over the Laitie in case of adulterie but the complaint which was made of it by Mr. Peter de Cugneres on the behalfe of the Iudges Royall which wee may read at this day extant put an end to that trouble And alwaies whensoever the Clergie attempted to meddle in such matters they have beene prohibited by the Parliaments upon appeals as from abuse which have beene put in against their decrees 28 So by an Arrest of Paris of the 28 of Iune 1534. It was determined that a married Lay man cannot be cited before an Ecclesiasticall Iudge for deflowring a Virgin There are two Arrests of that same Court called The Arrests of married whoremongers which are very remarkable one dated the 10 of Iuly 1366 the other the 5 of March 1388 whereby Bishops and Archdeacons are prohibited to cause Lay men to bee cited any more before their officials in case of adultery or fornication with other women than their owne wives There is also an Ordinance of King Saint Lewes the yeare 1254 for the banishment of common whores out of all cities and townes which hee will have to be done by his Iudges and Officers and their goods to bee seized by them 29 The like case is about seizure of goods it being a thing certain in France that such executions are prohibited and forbidden to Ecclesiasticall Iudges by an Ordinance of King Philip the third made in the yeare 1274 which forbids any Bishop to cause any such execution to bee made of the immoveable goods of any Clerke condemn'd in a personall action because the immoveable goods are out of his Episcopall jurisdiction According hereunto a certaine Bishop of Paris was declared not to be admitted into the Court in a pretendure which he made of the power of arresting certaine moneyes belonging to a Clerke inhabiting in certaine lands subject to the jurisdiction Royall and he was cast for attempting it by an Arrest of Paris the second of April 1334. And the reason hereof is that it is holden for a ruled case in our law that Bishops and other Ecclesiasticall Iudges have no territory or other right of temporall subjection as is proved by Mr. Giles le Maistre chiefe President of Paris by divers authorities And upon the same reason the cognizance of reall actions of debt and possessory is forbidden them When there is any necessitie of doing such or such like executions they must implore the aid of the secular arme which cannot be denyed them The Iudges Royall are enjoyn'd by the 24 Article of the Ordinance of Melune made 1580 to aid the Ecclesiasticall Iudges in the execution of their sentences when they implore tâ—e secular arme 30 Much lesse may they proceed by way of imprisonments or otherwise to the execution of their sentences Such Acts are left to the Secular power which they ought to implore But if in any criminall case they decree the Arrest of a mans bodie against those of their jurisdiction they cannot proceed to cause him to be attacht if he be out of their Court but must have recourse to the secular arme And to this purpose it was determin'd by an Arrest of Paris of the tenth of May 1535 That it was ill determin'd and absurdly proceeded by the Deane and Chapter of Mans who judged upon an accusation commenced against a Canon of the said Church that he should be kept prisoner in his Cloister 31 But one of the greatest wounds which the Kings authoritie and the Courts of Parliament can receive is that the power of appealing is taken away even almost in all actions For as for the Popes Bulls and Decrees wee have already prov'd that such appeales cannot bee put in hereafter in as much as he is made to be above a Councell above all Princes and Lords that have any soveraigne dominion in as much as the confirmation of all the Canons and Decrees of the Councell of Trent was left unto him the reformation also of all that concernes Ecclesiasticall manners and discipline and his authoritie in all things reserv'd As for the Bishopâ— and other Prelates of this Kingdome in all the before-mentioned cases it is said expressely that no appeale can be had from their sentences It is true that the Popes authoritie is reserv'd above all so as not onely the Kings inferiour Iudges are depriv'd of their ordinary jurisdiction but the Parliaments also of Appeals unto them as from abuse which have alwayes beene put in from the sentences of the Bishops yea even from the Canons and Decrees of the Provinciall Councels of France and the execution of the Popes Buls and Decrees 32 But there is yet more namely that appeales from abuse made unto the Parliaments in divers other cases is taken away as where it is decreed that no appeale shall bee made from such sentence of the Ordinaries whereby they shall depute a Vicar with an assignement of certaine portion of maintenance in any Cure or Benefice formerly without Cure Wherein there is a double grievance First that thâ— Iudges royall as Bailiffes Stewards and such like are deprived of that seizure which they are permitted otherwise to make of the revenewes of livings â—ine curâ both by the Ordinance of Charles the 6 Anno 1385 and by that of the States of Orleans holden under Charles the 9. Anno 1560 in the eight and twentie first Articles and after that by the Edict of Mâ—lune made by Henry the third in February 1580 Article the fifth upon occasion of the complaints of the Clergie of France and by another of the same Prince the tenth of September 1â—68 The other that our Parliaments are depriv'd of Appeales as from abuse which have alwaies beene used in this kingdome 33 Power is also given unto the Bishops to erect Colledges for the instruction of youth with the advice of two of the most ancient Prebends and to endow them with the advice of foure deputies two of the Chapter and two of the Clergie as also to order the revenewes of buildings and of hospitals tithes appropriated and belonging to lay men so as there can bee no appeale from what they shall determine in this respect Wherein there are divers good grounds of complaint First that the Councell undertakes to erect Colledges in France for the instruction of youth for that derogates from the Kings authoritie who hath provided for this point by the ninth