But because what I have formerly said touching the uniting of the Ecclesiasticall and Temporall Courts may seem strange to many I desire not to bee mistaken as if I perswaded any innovation or change of setled lawes and Courts of Iustice Which would be a thing of dangerous consequence that no wise man will advise but leave all to the wisdome of superiours to whom properly it belongs Only I will adde a few lines touching the auncient forme and manner of government in the Empire after that the Emperours became Christians from whom 't is likely the example was taken both among us and in other kingdomes XXV Touching the division of the Courts temporall from the spirituall though Will: the Conquerour began the separation with us in England yet there was the like done long before even by Constantine the great the first Christian Emperour who first gave leave to the Christian Bishops to meet in Councells and to make Canons to governe the Church Canones generalium Conciliorum ut Isidorus ait lib. 6. Etym. cap. 16. à temporibus Constantini coeperunt Inpraecedentibus namque annis persecutione fervente docendarum plebium minimè dabatur facult as Inde Christianit as in diversas haereses scissaest quia non er at licentia Episcopis in unū conveniendi nisi tempore supradicti Imperatoris Although ever since the Apostles held their first Councell in Ierusalem Act. 15. where they made certaine Canons for the pacification of the Church of Antioch there were also some Provinciall Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the Churches did require As may bee seene in the first Tome of the Councells before the great Nicene Councell was assembled by Constantine Who being the first Christian Emperour did greatly labour to setle and advance the dignity of Episcopall government And because he knew well that superiority in the Church without power and jurisdiction was to litle purpose Therefore the good Emperour in his Christian zeale enacted Et si praecipuum Pontificis seu Episcopi munus est doctrinâ verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in officio retinere possunt superiorit as in quasunt Ecclesiastici absque imperio jurisdictione non sat is habet nervorum authoritatis denique quoniam Ecclesia mater cultrix est Iustitie Ideo Episcopis peculiaris quaedam Iurisdictio Ecclesiasticae civili dignior in personas causas Ecclesiasticas legibus Imp est attributa c. ut jus dicant clericis c. And least the Emperour in his Constitution in these words ut jus dicant clericis should seeme to keep short and restraine the Bishops in their Audience or Consistories to Clergy-men only there followes a praterea in the same title in the Code De Episc. audient not long after this praeterea saith the Emperour there Ius dicunt laicis XXVI And as before the age of Constantine for want of power in the Church and the Assistance of the Christian Magistrate the Bishops could not restrain nor suppresse the many heresies schismes that did arise in those first ages most of which heresies were such as were fit to be beat downe by authority rather then by reason and argument they being so impious insolent and blasphemous so after his time when he had setled the Bishops authority yet there being two courts where did arise many differences and debates between the Bishops and the secular Iudges of that time touching cognisance of some causes Iustinian the Emperour made a law like unto that circumspectè agatis of our King Edward 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novell is thus Si delictum sit Ecclesiasticum egens castigatione vel mulct â Ecclesiasticâ Deo amabiles Episcopi hoc discernant nihil communicantibus clarissimis provincia Iudicibus Neque enim volumus talia negotia scire omnino civiles Judices cum oporteat talia Ecclesiasticè examinari et emendari secundum sacras et divinas regulas quas etiam sequi nostrae non dedignantur leges XXVII And further for the greatnesse of the Bishops authority it will appeare fully if we look upon the lawes as they lye concatenatae in the same title Where it is said of the Bishops Cum sint ordinarij Iudices and againe similes Praefectis Praetorio and further Ordinariè quoque procedunt The linked Texts in that title of the Code as they stand cited doe fully shew the greatnesse of the Bishops Courts and Authority when they are compared and said to be similes Praefectis Praetorio Who were Illustres Iudices and so stiled in the law they being indeed the most supream Iudges in the whole Empire there being but three in that spatious Empire One in Asia Praefectus Praetorio Orientis Another in Europe Praefectus Praetorio Illyrici The third in Africa Praefectus Praetorio legionibus et militiae Africanae These civill Magistrates were respectively Iudges of the Causes which the Emperour had translated from the Empire to the Church which when the Emperour had done and made the Bishops the same Iudges in the Church as the Praefecti Praetorio were in the Empire before it appeares hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their Vicar-generalls whom now we call Chancellours as a learned Civilian observeth who are no upstarts in the world rising out of the Bishops sloath as one though otherwise eloquent and learned mis-called them but had their Originall from the Law it selfe Touching whom I will here say something out of the learned Civilians because commonly their place and Originall is much mistaken by the ignorantly zealous people who doe now abound in the world and thinke nothing lawfull in government unlesse there be expresse text of scripture for it as if no calling government or subordination of Officers in the Church were lawfull but what is expressely and fully set downe in the scriptures and no power or authority left in the hands of Christian Kings and Magistrates to appoint Iudges and Officers for Church discipline as well as for civill Iudicature XXVIII But to returne as the Praefecti Praetorio quia illustres erant et antestabant caeteris dignitatibus ideo habebant Vicarios suos in civilibus causis audiendis et terminandis So were the Bishops then and so are they now Illustres Iudices et antestabant et antestant caeteris dignitatibus in Ecclesia For the Law paralells them in the Church with the chiefe Iudges in the Empire as well in this as in the rest of the parts of their Honour wherewith the Emperour had honoured them and the Law honours them at this day Iustinien's Code hath sundry lawes some of his
the price of his land as other zealous christians then did to pious uses Why hath Satan filled thy heart to lye unto the holy Ghost and to keep back part of the price of the land Whiles it remained was it not thine owne And after it was sold was it not in thine owne power But after he had given it then it was not in his owne power to resume or detaine a part This text deserves well to be considered on before men proceed to arbitrary resumption of things consecrated to pious uses XI Butconcerning the legislative power and votesof Bishops in making lawes to regulate the commonwealth and to preserve peace and justice among all sorts of men there is not to be forgotten an ancient law of king AEthelstan That worthy king in his lawes hath one chapter 11. De officio Episcopi quid pertinet ad officium ejus Episcopo iure pertinet omnem rectitudinem promovere Dei scilicet ac seculi imprimis debet paeem ordinatum Dei instruere quid ei iure sit agendum quid secularibus iudicare debeant Debet enim sedulò pacem concordiam operari cum seculi iudicibus qui rectum velle diligunt incompellationum adlegationem docere ne quis alij perperà magat in jurejurando vel in Ordalio Nec pati debet aliquam circumventionem injusta mensurae vel injusti ponderis sed convenit ut per consilium testimonium eius omne legis scitum et Burgi mensura omne pondus ponderis sit secundum dictionem ejus institutum valde rectum Ne quis proximum suum seducat pro quo decidat in peccatum Et semper debet Christianus providere contra omnia quae praedicta sunt ideo debet se magis de pluribus intromittere ut sciat quomodo grex agat quem ad Dei manum custodire suscepit ne diabolus eum laniet nec malum aliquid superseminet Nunquam erit populo bene consultum nec dignè Deo conservabitur ubi lucrum impium magis falsum diligitur Ideo debent omnes amici Dei quod iniquum est evervare quod justum est elevare non patiut propter falsum pecuniae quaestum se forisfaciant homines erga verè sapientem Deum cui displicet omnis iniustitia Christianis autem omnibus necessarium est ut rectum diligant iniqua condemnent saltem sacris ordinibus evecti iustum semper erigant et prava deponant Hinc debent Episcopi cum seculi Iudicibus interesse iudicijs ne permittant si possint ut illius culp â aliqua pravitatum germina pullulaverint Et sacerdotibus pertinet in suà diocesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alij noceat non potens impotenti non summus infimo non praelatus subditis non dominus hominibus suis vel servis aut liberis molestus existat et secundùm Episcopi dictionem et per suam mensuram convenit ut servi testamentales operentur super omnem Sciram cui praeest Et rectum est ut non sit aliqua mensurabilis virga longior quà m alia sed per Episcopi mensuram omnes institutae sint et exequatae per suam diocesim Et omne pondus constet secundùm dictionem eius et si aliquid controversiarum intersit discernat Episcopus Et uniuscuiusque domini necesse proprium est ut compatiatur et condescendat servis suis sicut indulgentiùs poterit qui à domino Deo empti sunt aeque chari servus et liber et omnes codem praetio redemit et omnes sumus Dei necessariò servi et sic judicabit nobis siout antejudicavimus eis quibus judicium super habuimus in terris It is manifest hereby that by the ancient lawes of this kingdome what trust charge and care is reposed in the Bishops not only to direct matters Ecclesiasticall but also to assist rule and guide temporall affayres to preserve peace Iustice upright dealing just and true administration of severall offices and duties whereby religion is much advanced and adorned when men are honest and upright in their actions contracts bargaines andcivill dealings amongthemselves So that they may not clash or oppose Religion or such Acts as have speciall relation to Religion for all publique Statutes Acts and Constitutions for the most part doe in some degree more or lesse trench upon Religion and the furtherance or hinderance thereof So that they can hardly beduly and rightly enacted and framed without the advise counsell assistance of Bishops the Clergy XII And though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affayres yet that is not absolutely forbidden but in a qualified sense as in the famous councell of Cloveshoe under Cuthbert Arch-Bishop of Canterbury An. 747. Canon 1. negotijs secularibus plus quà m Dei servitijs quod ab sit subditus existit To attend secular affayres more then spirituall and to be wholy imployed and conversant in temporall matters without due regard to the better part but it will not hinder sacred studies nor the diligent preaching of the Gospell that some men at convenient times have a charge and oversight of temporall affayres and the carriage of publique businesse And concerning this see more in Bishop Davenants determinations at Cambridge Quaest. 11. Civilis Iurisdictio jure conceditur personis Ecclesiasticis XIII Thus much might serve for reply to the Examiner especially upon the fift reason which I hold to be the only thing materiall in the whole discourse for the rest will appeare to be needlesse if this be cleared But if he would look back to former times he shall find that our kingdome and government followed the ancient manner of Gods owne people of Israel whose Ceremonies and Ritualls though they now be abolished yetthe generall rules of Iustice Equity Government and Order doe still remaine And as God made the Priesthood then Honourable in the Common-wealth and committed a great part of the government unto them so doubtlessenow underthe Gospell the Priesthood ought to be Honourable and to have a principall part in the ruling and governing of the state and Common-wealth To be a Priest in Israel was to be a chiefe man Levit. 21. 4. and therefore in all their Courts of Iustice the Priests and Levites were chiefe men in authority for deciding of all causes both in the great Court of Sanhedrim at Ierusalem which was a continuation of the 70. Elders appointed by God himselfe Numb. 11. and was answerable in authority to our Parliament and also in the lesser Sanhedrims forthe government of cities in every Tribe there were alwaies two allotted of the Tribe of Levi for assistance as Iosephus sheweth Lib. 4. cap. 8. Antiquit Oppidatim praesint septem viri probatae virtutis etiustitiae cultores Singulis Magistratibus attribuantur duo Ministri
Praepositus aut minister Regis nec aliquis Laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat Iudicium verò in nullum locum portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit And the punishment for disobedience to the Ecclesiasticall Iudges was much alike as formerly was enacted under the Saxon Kings As by King Alured Si quis Dei rectitudines aliquas disforciet reddat Lashlite cum Dacis Witam cum Anglis And the same law is afterwards confirmed and renewed by King Canutus by other Kings whereby it appeares how before the Conquest and likewise after for a long time the authority and jurisdiction of the Church was maintained and upheld by the setled lawes of the Kingdome How they had power in their Courts to excomunicate and further by the helpe of the King and the Sheriffe to proceed against stubborne offendors and such asopposed or contemned their authority so that here is the present practise and law confirmed by many hundred yeares continuance And this is according to that which Iustinian saith of all spirituall causes in the Novell 123. si pro criminal si Ecclesiasticum negotium sit nullam communionem habento civiles Magistratus cum ea disceptatione sed religiosissimi Episcopi negotio finem imponunto If it be an Ecclesiasticall suite let the civill Magistrates have nothing to doe there with that plea but let the Bishops end it Whereby it appeares that Prohibitions from the temporall courts were not then allowable which certainly came not into use till after the Councell of Clarendon under Hen. 2. Wherein the Clergy were inforced to appeare in the temporall Courts one Canon thereof being Clerici accusati de quacunque re summoniti à Iustitiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum et in Curia Ecclesiastica unde videbitur quod ibi sit respondendum Ita quod Regis Iustitiarius mittet in Curiam sanctae Ecclesiae ad videndum quo modo res ibi tractabitur Et si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Councell Matth Paris doth sharply inveigh against them Hancrecognitionem sive recordationem de consuetudinibus et libertatibus iniquis et dignitatibus Deo detestabilibus Archiepiscopi Episcopi et Clerus cum Comitibus Baronibus et proceris juraverunt And as he addeth His itaque gestis potestas laica in res et personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmurantibus Episcopis potius quà m resistentibus usurpabant And this appeareth also by that which Mr Selden relateth in his notes upon Eadmer pag. 168. that long after in Ed. 1. time the Clergy had so many oppositions and hinderances in their proceedings from the temporall Courts that they exhibited a petitionin Parliament wherein they recitethe grant and Constitution of Will 1. allowing them their owne Courts by themselves and specify their complaints particularly which hecalleth Gravamina Ecclesiae Anglicanae and saith they arethose mentioned in the Proeme of Articuli cleri And in this age we have great cause to complaine of Prohibitions but whereof I will say no more now as for the temporall Courts the Conquerour appointed them to follow his Court Royall which custome continued for many yeares till under King Iohn at the instant request of the Nobility it was granted Vt communia placita non sequentur curiam 1. Regis Sed in loco certo tenerentur That the Courts of Iustice for common pleas should not follow the Kings Court Royall but be held in a place certaine as now commonly they are in Westminster Hall Whereas before the Kings appointed one Grand-Lord chiefe Iustice of all England who for his authority and power was a greater Officer both of State and Iustice then any in these last Ages ever since that Office was diminished by King Ed. 1. and most of those great Iustices were Bishops till at length the Pope forbad it XXIIII But the Courts being now divided in the kingdome many hundred yeares the Ancient manner is forgotten and unknowne save only to the learned and the scarres of the Norman Conquest are so overgrowne that few men are sensible what reliques of slavery doe still remaine upon us by changing the order of the Courts the language of the law in great part with other things that I will not now mention But being so setled by the Conqueror and continued by his successours the Temporall Courts in processe of time grew too powerfull for the Ecclesiasticall and by their Injunctions and prohibitions stopt many proceedings especially after the Councell of Clarendon under Hen. 2. Wherein the power of the Clergy was much abated And all Ecclesiasticall Iurisdiction so crushed that it continued lame ever after although the Clergy by appeales to Rome did oftentimes help themselves and much molest their adversaries At length under Hen. 8. upon his breach with the Pope the Ecclesiasticall Iurisdiction was much abridged and restrained in very many particulars and reduced to a narrow compasse becoming much more subject and obnoxious to the Injunctions orders and prohibitions of all the Temporall Courts that now I marvell that any should complaine or envy at their power or greatnes there being no cause of any value or moment but by one order or other isdrawne from them to the Temporall Courts And now at last there want not some that would have all Ecclesiasticall Authority and Iurisdiction either wholy suppressed from the first Court to the last or at least so abated mingled or changed that what forme or force of government shall be left remaining seems very uncertaine But if Presbyteries and such like consistories of the forraigne and new fangled devising were erected there will follow great confusion and disorder to the infinite disturbance of peace and quietnesse in the kingdome by alteration ofso many lawes and customes and of the common law it selfe whereby the kingdome hath been governed so many yeares and setled in peace and all mens estates and lands held in certaine possession For such great and universall changes as will follow upon the dissolution of the Hierarchy and taking away their votes in Parliament and other eminent parts of government will produce such ill events and troublesome distractions as will not be pacified within the compasse of any mans life now in being Which I heartily pray God to prevent and by his good spirit so to direct and blesse the endeavours and counsells of the supreame Court of Iustice now assembled that all our feares and doubts may bee quieted and the voice of peace and truth restored to our dwellings