moderne writer makes a profound consideration heereof which is that S. Paul would haue appealed to Peter but he did not because it would haue beene reputed in him a great follie a consideration surely worthie of a perspicuous and deepe vnderstanding but yet not beseeming the resolute constancie of S. Paul that he did forbeare to speake a trueth for feare of being thought a foole He had not this respect before Festus and he ceased not to vtter those words vpon which the Prefect answered him Insanis Paule and S. Paul himselfe then said Act. 26. 1. Cor. 1. Nos praedicamus Iesum ChristuÌ„ Crucifixum Hebrais quidem scandaluÌ„ gentibus autem stultitiam and yet for all this he desisted not to speake and preach that which he knew to be reputed follie let not this therefore in any wise be iniurious to S. Paul seeing doubtlesse that most holy exemplar Apostle neuer deserued it And what can we say to the precepts of S. Peter the same S. Paul 1. Pet. 2. which are Subiecti igitur estote omni humanae creaturae propter DeuÌ„ siue Regi quasi praecellenti siue Ducibus tamquam ab eo missis ad vindictam malefactorum laudem verò bonorum quia sic est voluntas Dei and of this admonet illos Principibus ad Tit. 3. Potestatibus subditos esse dicto obedire as also that which we finde written in the 13. chap. to the Romans which may serue euen for a Sunne to dissipate the clouds of whatsoeuer error or doubt Omnis anima potestatibus sublimioribus subdita sit non est enim potestas nisi à Deo quae autem sunt à Deo ordinatae sunt itaque qui resistit potestati Dei ordinationi resistit qui autem resistunt ipsi sibi damnationem acquirunt nam principes non sunt timori boni operis sed mali Vis autem non timere potestatem bonum fac habebis laudem ex illa Dein Minister est tibi in bonum si autem malum feceris time non enim sine causa gladium portat Dei enim Minister est vindex in iram ei qui malum agit ideo necessitate subditi estote non solùm propter iram sed etiam propter conscientiam Ideo enim tributa praestatis ministri enim Dei sunt in hoc ipsum seruientes Reddite ergo omnibus debita cui tributum tributum cui vectigal vectigal cui timorem timorem Expos ad Rom. numâ— 72 super Epistoâ—â—m ad Rom. Hom ..... in expos cui honorem honorem Looke in S. Augustine for he putteth himself also now into the number of those which are subiect to the secular Prince obserue Chrysostome Theodoret Theophylact and Oecmenius who with very manifest and plaine words include within this compasse Apostles Euangelists Prophets Priests and Monks Read S. Thomas vpon the same place and you shall see how he most cleerely affirmeth that all Ecclesiasticall exemption grew from Princes their priuiledges ep 42. But S. Bernard yet somewhat more perspicuously affirmeth the same writing thus to an Archbishop Omnis anima potestatibus sublimioribus subdita est si omnis est vestra quis vos excipit ab vniuersitate si quis tentat excipere conatur decipere Let these Opponents but well consider whether euer any of the ancient holy Popes Bishops or other Priests affirmed that they were exempted from the authoritie of Princes and Magistrates and I know they shall not finde one but so they may well finde that euery one hath confessed this subiection denying onely the iustice of the cause for which they were condemned We haue a famous example of this in Polycarpus Bishop of Smirna and disciple to S. Iohn the Euangelist one of the excellent Founders of our faith whose words reported by Eusebius are these Magistratibus enim Iuseb 4. c. 4. potestatibus à Deo constitutis eum honorem qui nostrorum animorum saluti nostraeque Religioni nihil affert detrimenti pro dignitate tribuere docemur Some say that the Apostles were enioyned obedience vnto Princes while they were Heathens but not after they became Christians and this was by reason that the Clergie in respect of their holy Order and the spirituall authoritie that they retaine are greater But these men S. Iohn Chrysostome answereth in a few words Si enim Paulus cum Gentiles adhuc essent Principes praecepit multo magis oportet fidelibus exhibere quod si maiora tibi concredita esse dixeris disce non nunc honoris tui tempus esse peregrinus enim hic es aduena tempus erit cum omnibus apparebis illustrior nunc vero vita tua abscondita est cum Christo in Deo quando Christus comparuerit tunc vos comparebitis in gloria Who is it that may well doubt but that Ecclesiasticall exemptions haue beene the priuiledges of Princes when the selfe same lawes and priuiledges are extant and we see they were not granted all at one time but by little and little the which I will set downe according to their times because it greatly importeth for any mans satisfaction that desires hereof to be certified Constantine the Great about the yeere 1315 C. Theod. de epis cler l. 2. ibid. l. 10. exempted the Clergie from publike personall and Court seruices Constance and Constante his sonnes added heereunto an exemption from all illiberall and sordid actions as also from impositions and they priuiledged Bishops onely from the arrests of Secular Courts ibid. l. 12. all others of the Clergie still remaining vnder the Secular Iudge aswell in cases criminall as ciuil and about this there afterwards were enacted two lawes one by Valente and Gratianus about the yeere 380 ibid. l. 23. ibid. l. 37. ibid. l. 41. ibid. l. 47. and another by Arcadius and Honorius in the 400 but then much about the yeere 420 Honorius and Theodosius the second and after that the same Theodosius with Valentinian the third put ouer the triall of the Clergie to the Bishops so both parts are well content and if one of them would not accept of the Bishop C. de episc clo. l. cum clerici C. eod l. omnis qui. referring them then ouer to the Secular Magistrate the which was also confirmed by Martian in 460 and by Leo his successour finally by Iustinian about the yeere 560 all difference and varietie was remooued and taken vp by a law of this import Nouell 83. Nouell ... That the Clergie in ciuill causes should be subiect to the Bishop and in criminall to the Secular Iudge the which continued in force til 630. When Heraclius further exempted them from the Secular Magistrate as well in cases criminall as ciuill yet euer reserued entire the Princes immediate Deputies and Substitutes And thus it was obserued while the diuision of the Empire as also after the same maner and fashion the Greeke Church continued as long
and States nor consenting to the authoritie which they haue from God he only takes notice of his owne proper authority as he is a Pope for which cause he would also haue an hand in there gouernments Heere some obiect saying all punishment is for the correction of a malefactor otherwise if it haue not reference to so good an end it may rather be tearmed a tyrannicall act and the correction of euery offender pertaines to his superior Wherefore it toucheth not a Prince greatly whether an ecclesiasticall delinquent be punished or no let him in Gods name looke to the punishment of the Laietie for if Clergie men be not chastised the Prelats must giue an account thereof vnto God And surely this reason should haue concluded very well if the maior thereof had beene true which is that the punishment of a malefactor was the onely end of criminall iustice It is an end indeed but a secondary end and the least of two it being for a priuate benefit but the principall is a publike end and consisteth in two things one in maintaining of good customes and conuersation in the Citizens and in the citie tranquillitie and peace and an other is that when any one vsurpeth ouer his neighbour aduantage or hard dealing by afflicting and preiudicing of him against reason by inflicting a proportionable punishment againe vpon the other to reduce things to an equalitie When the Ecclesiasticall person laying aside the feare of God and of the world doth violate the lawes he giues therein a publike offence by being an euill example vnto the Lay man who by such an imitation grow bad and wicked and moreouer he instigates him whom he iniured to seeke reuenge with the subuersion of publike quiet and repose It ought therefore to be a Princes speciall care that offences may be punished otherwise by the reason aboue alledged a Prince might neuer punish a stranger which should offend in his State seeing he being none of his subiect he need not be carefull of his profit or good A Prince doth punish a stranger not as hauing in this a simple reference to correction but to defend his owne subiect from iniuries as he is bound and to cut off all wicked example which might induce customes pernicious to publike peace And therefore it preuailes not to say If it be necessarie for publike good that a Clergie man be punished let the Prince procure him punishment from his Prelate and so let him suffer the Lay Magistrate to execute the same For answer to which we must obserue that the Church according to the sacred Canons cannot punish in poena sanguinis no not for the most grieuous and enormous offences that are committed but the chasticements of the Church must be with censures of suspension priuation deposition or penalties of degradations or els they impose the profitable penance of prayer fasting and other charitable deeds and the seuerest sentence which they denounce is to confine one within a Monasterie or some strait prison there to performe perpetuall penance of which notwithstanding we haue not beene eie-witnesses in these our daies vpon any offence how hainous soeuer committed And if some whiles they enioyne this penance for any long time after relation made of the penitents humilitie and his willing obedience they quickly forgiue him and readily receiue him to grace and fauour And notwithstanding that it was Iustinians owne commandement that offenders should be committed to the Secular power yet the common and receiued opinion of all Canonists is that it is only to be performed in three cases that is in the case of heresie of falsifying letters Apostolicall and vpon conspiracie against their owne Bishop for they rest they affirmatiuely hold That if a Clerke had committed neuer so foule or hainous an offence yea though he had killed the Pope himselfe if he did but offer to vndergo due penance for the same that he ought not to be degraded nor deliuered ouer to the Secular Iudge but to be confined to perpetuall prison From this qualitie and forme of iustice it followeth that Clergie men would readily transgresse the lawes for they feeling more profit and pleasure in their offence than losse or paine in the punishment they make choise rather of this chastisement it being of them more lightly esteemed than to be depriued of their proper lusts and appetites and so being in no feare at all of their liues a thing that for the most part doth most bridle and terrifie all malefactors and hoping though some Ecclesiastical penalties be imposed vpon them to take vp the matter againe quickly they make it lawfull without any law at all to enter into any flagition as also Ecclesiasticall Courts punish not those offences most which disturbe publike tranquillitie but rather those which abridge and infringe their owne interests For the falsification of letters Apostolicall or a conspiracie against a Bishop which are the cases as was aboue said for which degradation was instituted these touch not the Laity so neere but proditions high rreason falsification of coine man-slaughter for which they would impose their Ecclesiasticall penance these are the enormities which for the seruice of publike quiet and peace should be punished with rare and exemplar seueritie And certeinly a Prelate which gouernes his Clerks can not well do any act but that which will haue most reference to themselues only their owne benefit neither can he respect the profit of the whole common wealth in punishing of his priests euen as an housholder doth punish his sons seruants but with a respect to the good of his owne house only The executions and chastisements of Princes only and their Substitutes are directed and truly tend to common benefit which is his reall and true end To say that a Clerke should be punished by his Prelate for hainous offences which breake publike peace it is no other but to say Let that punishment haue reference to the good of Ecclesiasticall Order and for the Laitie let them participate only of the preiudice which groweth from such offences as the other commit and of the good which should arise from their chastisement let them haue no part at all And to speake boldlie the trueth Prelates neuer punish Priests for offences committed against Secular men but vpon great instance made vnto them by the Magistrate or for feare lest they should supplie the others default And not without some reason for their care is how to gouerne the Presbyterie and not how to defend the Secular But a Prince that receiues tribute and other seruices from his subiects in defence of their liues honour or goods he can not without sinning abandon them when they are oppressed by their insolencie who vnder colour of priuilege runne into all impieties permitting that malefactours should scape vnpunished or els to be chastised only with Spirituall penance but the Prince is bound to punish them for preseruation of iustice and the example of others especially the same Prince being
the building of Churches without licence and at last he resolutely came to this point That he would haue the foresayd two Lawes reuoked and the two prisoners deliuered to his Nontio then resident in Venice wherefore on the tenth of December drawing two Breues one vpon the two lawes and another vpon sentence giuen on these two Ecclesiasticks he enioyned his Nontio to present them But the Nontio moued thereunto peraduenture because the Senate at that time had chosen an Ambassadour extraordinarie to assay all milde and possible meanes to remoue his holinesse from this resolution which he had vndertaken before well vnderstanding of the cause and to induce him first to be better informed before he proceeded to any other execution but he deferred the presentation of the Breue this being a thing not well approued of by the Pope so that with all expedition he sent him commandement to present them immediatly Wherefore on the day of the Natiuitie of our Lord when Duke Grimanni was euen yeelding vp his soule into Gods hands and that the Signorie with the Senatours were assembled of whom some had alreadie receiued the holy Sacrament of the Eucharist others were to receiue it he requested audience and presented the two Breues sealed which were not then opened by reason of the Dukes death which hapned the day following while after election made of a new They being at last both opened they both appeared to be of the selfe-same tenor and implied thus much How it was giuen him to vnderstand that the Common-wealth in her decrees had constituted many things against the libertie Ecclesiasticall and the authoritie of the See Apostolike and that particularly she had extended thorowout her whole dominion certeine lawes which concerned only the City of Venice which prohibited the building of Churches Monasteries and Religious places and another which forbad the alienation of Lay mens goods to Ecclesiasticall persons without the Senates licence All which things as being contrarie to the Ecclesiasticall libertie he declared as inualidious and he that instituted them had incurred Ecclesiasticall censure commanding vnder paine latae sententiae that they might be reuoked and cancelled threatning if he were not herein obeyed to proceed further Whereunto the Senate about the eight and twentieth of Ianurie made answer That they had with griefe and much woonder vnderstood by his H. letters that those lawes which through so many ages had so happily beene executed by the Common-wealth and which by no one of his predecessors were euer reprehended and which to repeale would be a turning topsie-turuie of the foundation of their gouernment were now found fault withall as being contrary to the authoritie of the See Apostolike and so they which instituted them being men of singular pietie and that deserued well of the See Apostolike which are in heauen come herein to be taxed for Violaters of the Ecclesiasticall libertie that they had according to his H. admonition examined the lawes both olde and new finding nothing in them which might not be decreed by the authoritie of a supreame Prince and touching some particulars of their allegations and reasons they concluded how in their opinion they had incurred no censures and that his H. replenished with religion and pietie would not without well vnderstanding of the cause perseuere in his comminations and threatnings And heere it is first required that we proceed a little further and declare what the obiections are which he makes against the two lawes aboue-written how easilie and readilie they may be answered and together what is the reason iustice and equitie of these lawes and how lawfull the power of the Common-wealth is to institute them The Pope obiecteth against both these lawes together That they are sedis Apostolicae auctoritati ecclesiasticae libertati immunitatique contrariae tum generalibus Concilijs sacris Canonibus necnon Romanorum Pontificum constitutionibus repugnantes wherefore aboue all other things it will be very fit that we vnderstand what this Ecclesiasticall libertie is and from whence it tooke the originall seeing it is most certaine that this name is but new and for twelue ages neuer so much as heard of in the Church The holy Apostle S. Paul makes mention of a Christian libertie in his Epistles to the Romans and Galathians at full shewing therein That by the sinne of our first father we were all made seruants vnto sinne from which seruitude Christ our Lord hath freed vs we being redeemed by his blood and therfore he saith Cùm serui essetis peccati liberi fuistis iustitiae nunc verò liberati a peccato Rom. 6. serui autem facti Deo habetis fructum quidem sanctificationem finem verò vitam aeternam And to the Galathians he propoundeth another seruitude to the ceremonies of the Law of Moyses from which in like maner Christ hath freed vs when he saith Gal. 4. Nunc fratres non sumus ancillae filij sed liberae qua libertate Christus nos liberauit This so great grace of libertie was giuen to no others but to euery one of Christes faithfull and generally to the body of the Church Wherefore some of the ancient Saints called it the libertie of the Church and none oppose themselues against this except the minister of the diuell and the partakers of hell and there is no doubt but whosoeuer in the least tittle went about to derogate from these lawes but that he should be an alien from the holie Catholike Church But of this libertie we speake not at this present seeing that the famous and authenticke name of Church which anciently was common vnto all the faithfull as well Clergie as Laietie seemes now to be restrained for the most part to signifie the Clergy only Whereupon libertie hath beene granted to it separate from the former of which as it appeares Honorius the Third was the first that made mention therof about the yere 1220 but what the same Honorius vnderstood by Ecclesiastical liberty and the Emperour Fredericke the Second who in the same time and at the instance of the same Pope nameth it so neither they themselues expresse nor is it yet well decided amongst the Canonists for in all the Canon Law we finde it not determined neither be these things expressed which are comprehended vnder the same as also there is no rule set downe how to iudge of them for the which cause when disputation groweth vpon any point they do not agree vpon it what is against Ecclesiasticall libertie Libertie is defined by the Ciuilians to be a certaine naturall facultie of performing what one will as farre as the lawes permit Some thinke that this facultie in the Clergie to doe what they list conformable to the lawes should be the libertie of the Church so that by this meanes and in that sense the same which is absolute libertie in the Laie-man in him of the Clergie it is libertie Ecclesiasticall and it consisteth in enioiing that facultie which common lawes affoord euerie one
sense may conceiue the reasons and occasions of this law but I repent me not hereof because they may also serue for a defence of that law of 1605 which prohibiteth the Laitie to alienate any thing stable to Ecclesiasticks For this doth lesse dispose of any thing of the Church neither imposeth it any thing vpon Ecclesiasticall persons but only vpon Seculars and Secular mens goods What iniurie shall a Prince offer in this when he commandeth his subiects to haue no commerce with some kinde of persons The prohibiting of forren transportations or to bring in all kinde of merchandize is an vsuall thing in all Kingdoms is it therefore an iniurie to strangers I thinke no man will subscribe to this consequence and so much the rather by how much priuate men make such a law vpon their owne goods when in contracts liuellarie they set downe conditions When one builds vpō an other mans floore that the liuellaries shall not sell or alienate his goods to the Church and yet euerie one doth this And others in their Testaments to keepe their goods in their house they deuise couenants that it may neuer passe ouer to the Church All lawes de fide commissa would be against the liberty Ecclesiasticall because they forbid the making ouer of any goods to the Church and those of Falcidia Trebellianica also because they all detaine that portion from the Church which being taken from the legaced they would haue then remained vnto the true heire I know that some one very desirous of the augmentation of Ecclesiasticall rights in the Temporaltie will affirme that so it is but I beleeue his opinion will haue but a few followers and it is a great wilfulnesse to condemne actions and ordinances which all Christendome from a thousand fiue hundred and more yeeres since hath not onely I will not say admitted but further praised commended and thought them seruiceable vnto God There are indeed some who in fauour of the Secular may say That it had beene and would yet be very lawfull to constitute a law that none might sell their stable possession without licence which generall caueat would also comprehend the Ecclesiasticks and the Prince being sued vnto for licence might readily grant it when the alienation were to passe ouer to a Lay man and so to denie it vpon the demise to an Ecclesiasticke and this would not be against libertie Ecclesiasticall To whom we must answer with some libertie for if they would a little looke ouer their Logicke they should finde that the whole genus being granted euerie species in priuate and particular is yeelded vnto so that whosoeuer grants that a Prince may absolutely prohibite any alienation he must needs likewise confesse that hee may prohibite it in Strangers Noble-men Ecclesiastickes or in whatsoeuer kinde of other persons in particular They say he may doe this absolutely to all but so not to the Clergie alone and the Logician saies he may vniuersally to all and therefore also to the Ecclesiasticall in particular But yet we will speake vnto them somewhat more seriously and aduise them to studie a little the holy Scriptures where S. Paul will teach them Nolite errare Gal. 6. Deus non irridetur A goodly matter certainly If this be no sinne to procure that lay goods may not be passed ouer to ecclesiastical persons why do they condemne it why reprehend they it Hath not the Prince done well enough in no waies offending of God and if it be sinne when the same effect remaining the words are but onely changed what haue they done else in this but iested with God and thought to deceiue him with Sophistications It is not Gods pleasure that such like thoughts should euer come into a Christian mans heart If it were Gods will that the Clergie ordained by him to attend Spirituall things allowing this institution that they should be made owners not onely of a part of Temporall things but euen of all we ought not then to honour them with words onely but euen with deeds to procure also that assoone as possible this his diuine will might be effected But let vs proceed to declare more perspicuously that a Prince by such a law ordaineth but truly of his owne things and not of those of the Church This is most manifest that if any seruice lie vpon a possession or tenure the owner of the same cannot passe it ouer so to the Church◠as that this seruice and bond may be frustrate but whatsoeuer possession stable there is in a State it oweth subiection to the Prince the which is greater and much more strict then can any waies belong to a priuate man for the power of a Prince ouer all goods is farre greater then is the prerogatiue of a priuate man A Prince by his power for publike good may extenuate and vtterly take away a priuate right but a priuate Lord can in no wise derogate or take away from the power of a Prince for euen by his will and gift or any other meanes he cannot procure but that a Prince will haue his interrest therein Let euery one but weigh and consider how conformable to nature it would be that any thing should passe by the disposition of a priuate man vnto the Church and that for this cause it should be free from subiection to the Prince But they will answer they are content it should be conueied ouer with bond and obligation to pay all such duties as it was charged withall in the Lay man Verie good but why at this present doe they consent heereunto and in times past they would be exempted from all couenant and bond And yet moreouer we may affirme that a Prince hath other right ouer all stable goods besides ordinarie tributes seeing he may challenge extraordinarie duties also in the same without the which couenant it is not reason it should be conueied ouer because as well as the others he may taxe it with other impositions And if this seeme somewhat a hard condition yet is it but naturall But further yet if the Prince challenge some personall seruices from the possessors as in the warres offices Court attendance or any other respect why should he lose it and besides this the Prince hath ius to confiscate that stable possession for the Lords offence but being passed ouer to the Church it is not then confiscable and therefore why should the Prince lose his ius and heere occurreth a most notable example to conuince these opponents Ecclesiasticall Benefices are voide by the death of the Intendants and therefore the Court of Rome hath the first fruits and the price of the Bolle Many Benefices belonging to Monasteries Chapters and other Fraternities the Popes perceiuing that by such a dependence they lost that benefit which otherwise by the Curats death came vnto their hands and they considered that vnder euery fifteene yeeres such a vacancie might haue fallen out and therefore they ordained that all Benefices thus depending should pay
needs haue licence to obey him and licence being required whereas without non licet shall not then that which God commands be lawfull Nature in all her finall drifts giueth also such faculties and powers as are necessarie for the atteining to the same and shall God set downe an end and commandement which can not be executed without the fauour of men This is too great an inconuenience But let vs returne to the matter of the same law the which as it is in it selfe no new inuention so the most famous Ciuilians haue discussed of the same and defended it for iust and amongst others there is Baldus the Archdeacon the Abbat Signarolus Alexander Bal. c. qua in ecclesiarum c. ecclesia S. Mariae de constit Arch. c. R mana de app 16. Abb. l. 1. cons 63. Signorolus cons 21. Alex. cons 93. Barbat l. 2. cons 14. Crotus l. 1. cons 5. Tiraq de retract consang §. 1. gl 13. Gail l. 2. cons 32. Capit. de fac pol. l. 3. to 1. Barbaccius Crotus Tiraquellus Gaelius Renatus and Copinus by reading of whom euery one may plainly discouer whether this were any sufficient cause against which to proceed with censures and the principallest points in such a sentence not hauing beene duly obserued Whereupon it will not be altogether vnprofitable to deliuer some thing also about the order obserued by the Pope herein to the end that we may plainly see how many nullities passed in the management of such a businesse of such a iudgment or censure I will not say because wanting all substance thereof it can not so iustly be tearmed The Diuines say That an vniust sentence may well appeare externally to be a iudgment but in it selfe truly it is not so as also That euery vniust iudgment is of it selfe nothing and That an indirect iudgment is no more a iudgment than a dead man is a man But what we see in it a plaine formall defect and this of that substance as it makes it altogether immomentall First it was declared without any citation preceding That the old and new lawes of not alienating of goods and building of Churches without licence are against the authoritie of the Apostolike See and of Ecclesiasticall liberty and that the Law-makers themselues haue herein incurred censure and yet it is an apparent point in all the Ciuilians That citations are de iure naturali and also very requisit in all causes declaratory The which may well serue for a nullitie of the aboue-mentioned Breue and of whatsoeuer hath beene prosecuted in vertue of the same But that so many godly men alreadie dead in Christ and which haue alwayes communicated with the Popes of their times should be denounced excommunicate what is it els but to condemne so many of the Popes predecessors and to auerre that they discharged not so well their care of soules as they ought to haue done And I assure you amongst them there were diuers Popes of singular vertue and pietie The Pope yeelds a reason why he determined to proceed against the Common-wealth saying Cum praetermissi officij nostri causae Ecclesiae desertae à nobis rationem extremo Iudicij die exigi à Deo nullo modo velimus neque enim existimetis nos qui alioquin pacis quietis publicae cupidissimi sumus omnesque nostros cogitatus eò intendimus vt soli Deo interuenientes rem Christianam quantum possumus pacatè gubernemus quique omnium animos praesertim maximorum Principum nobiscum ea in re consentientes esse optamus si aliquando Sedis Apostolicae authoritas laedatur si Ecclesiastca libertas immunitas impetatur si Canonum decreta negligantur Ecclesiarum iura Ecclesiasticarum personarum priuilegia violentur quae muneris nostri summa est id aliquo modo dissimulaturos aut officio nostro defuturos hac verò in re id vobis persuasum esse volumus nos nullis humanis rationibus moueri aut quiddam praeter Dei gloriam quaerere aliudque habere propositum nisi perfectam quoad eius fieri possit Apostolici regiminis functionem And surely his H. not without iust cause may well feare a iudgement diuine hauing offended in his Pastorall office because God threatneth by Ieremias Veh Pastoribus qui dispergunt dilacerant gregem pascuae meae dicit Dominus Ideo haec dicit Dominus Deus Israel ad pastores qui pascunt populum meum dispersistis gregem meum eiecistis eos non visitastis eos Ecce ego visitabo super vos malitiam studiorum vestrorum ait Dominus And to the people he promiseth Dabo vobis Pastores iuxta cor meum pascent vos scientia doctrina For this is most certeine that the very summe of all Pastoral charge consisteth in the preaching of the Gospell in holy admonitions and instruction to Christian conuersation in the administration of the Sacraments a care ouer the poore and in the punishment of such offences as absolutely exclude vs out of the Kingdome of God these being things which our Sauior Christ recommended ouer vnto S. Peter committing them to his charge the which things only were practised by him as also by the holy Martyrs his successots and the holy Confessors also which succeeded them from time to time but not in such a maner as the darknesse succeeds the light In the sacred Scriptures wee learne that the glorie of God consisteth in the propagation of the Gospell and in good Christian life 2. Cor. 4. and in briefe as S. Paul speaks in the mortification of the externall man in the life of the internall and in the exercise of charitable deeds For if the glorie of God should lie in the abundance of Temporall goods we might haue iust cause to be afrayd of our selues seeing Christ hath promised to his nothing but pouertie Iohn 15. persecutions discommodities and to conclude as the same vulgar know very well troubles and want are the true trials of the ftiends of God Math. 8. and no man sayth the Gospell followes Christ but after he hath taken vpon his shoulders his owne crosse That which by some one hath beene dispersed in diuers places and to many persons is very different from the doctrine of S. Paul which is 1. Cor. 15. That it can not be seene wherein this city can be so truly commended for religion for though almes and charitable deeds towards the poore abound in the same as also ornaments of the Church and worship diuine yet for all this the very substance of a Christian consisteth in fauouring the Ecclesiasticall iurisdiction and in Venice we see the contrarie to this 1. Cor. 15. The saying of S. Paul is Si tradidero corpus meum ita vt ardeam charitatem autem non habuero nihil sum We reade in the holy Euangelists that our Sauiour in the day of iudgment will demand an account of the wicked for not hauing vsed the works of
as that Empire lasted But indeed in the West the French Emperours and Saxons with the Kings of Italie they haue diuersly obserued herein sometimes committing of iudgements to the Clergie and otherwhiles sentencing not only Priests and Bishops but euen the Popes themselues one while referring them in part to be iudged by the Spiritualtie and in part by the Magistrates according as the alteration of times permitted at one time the Popes authoritie preuailing and at another the Emperours And at last Fredericke the second about 1220 made an authenticall insertion into Iustinianus his Codex That no man might bring any ciuill or criminall Clergy man before any Secular Iudge and whosoeuer readeth the titles Episcopis Auth. C. de episc cler l. statuimus Clericis de Episcopali audientia vel de Episcopali iudicio in Theodosius and Iustinianus his Codex he may finde all these lawes and be fully informed how Ecclesiasticall exemption hath beene a benignitie and fauour vouchsafed by the Emperours as also they shall be certified that though they granted exemption to the Clergie from the power of their Magistrates yet did they neuer except any from their owne highest and supreame power The power of punishing whosoeuer offendeth against the lawes is so annexed to all principallitie as it is indiuiduall from the same and to say that a Prince hath one in his State not subiect to him in causes temporall or any other concerning publike good it implieth so much as if he were not a Prince A naturall bodie could not comport that there should be in it any one member not allotted to the seruice of the whole and entire much lesse can a ciuill bodie endure that there should be a man in the middest of it that did acknowledge any other but the Prince in humane and temporall things The Pope himselfe in things spirituall exempts whom he lists from Bishops and Archbishops but from himselfe he can priuiledge none without desisting to be Pope The Venetian Common-wealth being freely begun and borne as it were about the yeere 420 notwithstanding as it vsually falles out in all great States not so expatiated in her beginning into so large and spacious dominion yet hath it receiued from God no lesse than other great Princes in their mightie Empires authoritie and power ouer any person liuing within her dominions and the same Common-wealth hath suffered the Clergie to enioy the same priuiledge from Magistrates as they were granted from time to time in the townes and cities of the Empire being contented to punish in them those exorbitances which being vile and enormious might be a disturbance to publike peace and tranquillitie and there remaine Records of Ecclesiasticks punished for all sorts of offences and sometimes for such as would now be counted but slight but yet in respect of some particular circumstance deseruing worthily to be punished by the Common-wealth And though the Popes of Rome since the yeere 1160 C. at si clerici de iudi C. clerici eodem C. cum non ab homine eod C. qualiter quando eod haue made diuers decrees for the priuiledge of Clergie men yet haue these beene receiued so absolutely in no place by any Prince neither beene able to effect but that offences of high treason haue beene alwayes subiect to Secular iudgement Thorowout all Italie they punish Ecclesiasticall persons without any warning which goe not in their habits notwhithstanding any exemptions or decrees Pontificall In Spaine they do the like vpon the wearing of armes and diuers other offences In France they distinguish betweene common and priuiledged offences and only the former are referred to the Clergie and the latter to the Secular Iudge And so in like maner this Common-wealth hath diuided offences into those grieuous and others light and little importing those of no moment are put ouer to the Church and those grieuous committed to the Magistrates And thus haue they alwayes proceeded in executing the iustice and libertie of their iurisdiction I will not affirme that this is only a custome which being contrarie to a law hath in tract of time worne out the vigor of the same law it selfe for we doubt not but that custome must not preuaile against the law of God and of Nature though it had continued for many thousand yeeres and we will readily confesse thus much That if God himselfe had euer excepted persons Ecclesiasticall the act of any Prince whatsoeuer decreed to the contrarie would be but an vsurpation and offence against God And further to the former we will annex this also by their fauours which say That their priuiledge growes de iure diuino That if it were so the Pope could haue no power to bring them vnder because Seculars should not then be capable to put in practise that by the Popes dispensation which God had prohibited God hath forbidden Secular men to say Masse to confesse and such like the Pope can not by any of his dispensations beare them out herein And if they tell me that this is ius diuinum indispensable but the Popes is dispensable not to argue or labour to shew the contradiction which is in saying ius diuinum and yet dispensable by humane authoritie Innoc. c. cum Apostolica de sim de priuil c. quod quibusdam de verb. signif c. in bis c. super quibusdam it may suffice to answer them that all the meanes which may be obtained by a Dispensation from the Pope may also be acquired by a custome which may grow and propagate contrarie to a law and if we should suppose the execution of Clearks to haue beene first ordained by law and also executed and that afterwards through immemorable vse and custome the contrary were prescribed I say it might lawfully be practised and put in vse But in this our case the vse and custome of the Common-wealth preceedeth any law which priuiledgeth ecclesiastical persons from Secular triall in enormious criminall causes and no decree whatsoeuer which the Church hath made can preiudice them a whit To which may be added the secret approbation heereof in all the Popes who seeing and knowing thus much if they had not iudged it conuenient they would haue reprehended it and moreouer the expresse approbations themselues of Sixtus the Fourth Innocent the Eight Alexander the Sixt and Paulus the Third whose Breues are reserued in the secret rolles of Common-wealth doe truely maintaine what she hath iustly constituted The which Innocentius euidently declareth in his Breue directed to the Patriarke of Venice deliuered on the last of October 1487 in which intimating with what good reason the Common-wealth did sentence Clergie men not onely in those most horrible but also in all other offences that were anie waies odious and vile he vseth these words Nos attendentes priuilegia ad bene viuendum dari non ad delinquendum illaque praesidio bonis contra improbos esse debere non autem malis ad nocendum facultatem
c. A matter which does not onely often fall out in these our daies but then also it was most frequent and vsuall as Pope Sixtus the Fourth in his Breue to the Patriarch of Venice deliuered the 2. of Iune 1474 testifieth in these words Cogimur non sine cordis nostri dolore plurima quae nollemus de personis Ecclesiasticis audire ex ista Ciuitate praesertim in qua saepè nonnulli aut monetas adulterasse aut crimen loesae maiestatis admisisse dicuntur And if any man to prooue that priuiledges are de iure diuino should alledge the example of Constantine in the Councel of Nice let him but reade it ouer againe well and then tell me whether it make for or against his intention Iustiman the Emperor his Nouels the 3. 5. 6. 11. 123. 131. 133. 137. with abundant perspicuitie set downe what exemptions were proper to Clergie men vnder that Emperour and what they enioied before his time If then in the beginning by the priuiledges of Emperours and afterwards through some conniuencie they haue obtained priuiledge why should they so set vp their bristles when the Venecian Common-wealth saies that though others in their State haue permitted that enormious crimes also in the Clergie should be iudged by the Ecclesiasticall Courts supposing and thinking that this might stand well with their gouernment yet they neuer yeelded nor consented thereunto as reputing it a thing contrarie to their publike peace and tranquillitie We might heere further alledge that these exemptions are not grounded alike in no Dominion nor Kingdome and he that does but read what the Cryminalists haue written but especially Clarius in particular l. 5. § fin q. 36. shall cleerely see how diuersly in diuers places these priuiledges haue beene performed and practised this being an indissoluble argument that they are not de iure diuino so as custome may ouerrule them and that the Popes decrees vpon this point haue not in all places beene receiued And heere it were also good to consider that in the Breue of the 10. of December this present Pope saith a Canon and an Abbat are imprisoned Personas in Ecclesiastica dignitate constitutas There might a thousand Papall Breues be produced to shew that Cannonicatus non est dignitas but at last spying this error in their Printed Monitorie they haue excluded the Canon and mentioned onely the Abbat propter personam in dignitate Ecclesiastica constitutam so that by this we may collect that euen in the Popes Breues there may also be errors especially when they are wrtiten with too much haste which is an occasion they are not therein so considerate as reason requires And yet there is some doubt whether these commendatorie Abbatships be dignities or no in that the sacred Councell of Trent prohibiteth all Commendams yet it greatly concernes this Treatise which we haue in hand that it should be a dignitie and that heereupon the Pope may laie his foundation so as if it were a poore Priest vnbeneficed the matter would not be so great For the qualitie of the place is a speciall matter to make the priuiledge greater and more authenticall considering it is most certaine that there are orders appointed in the Church such as the Sacraments are iure diuino amongst which Priesthood is the highest but for these dignities of Abbats Priors Archdeacons they haue beene brought in iure humano wherefore if exemption and priuiledge were ex iure diuino it would belong principally to the Priests though they had no title at all and not to certaine special remarquable places as they would haue it And out of question he that goes about to dissolue this firme knot of equity reason he cannot attempt it without pain and great labor This argument requires the consideration of two qualities in the person of the Pope the one of the Bishop of Rome a Bishop of that particular Church and the vniuersall head ouer all others and an other as he is Prince of that State which he possesseth for though at this present they are ioyned together yet is it not necessarie that either the Temporall Prince of Rome should be a Pope as that the Pope should be a Prince It boots not now to expresse when both these qualities were vnited for it is peraduenture aboue foure hundred yeeres and yet say it had so beene this eight hundred yeeres this would not a whit disable our discourse as Pope in the Citie of Rome he hath there his Vicar or Vicegerent and in other cities vnder him Archbishops Bishops and other Ecclesiasticall Rectors and as a Prince he hath Ministers Gouernors Iudges and others who though they be partly Priests yet as being Priests they doe not discharge those offices and many of them also are meere Lay men Now when any Ecclesiasticall Priest or Friar commiteth any enormious offence we see that the Bishops or those that discharge Ecclesiasticall places doe not punish them Three speciall prisons so called but rather Gouernors Auditors and such like How often haue we seene Terre de noua Corte Sauella and the towne of Boloqua with other Lay prisons full of Priests and condemned Friars and that which importeth more then all the rest during the Popedomes of Sixtus and Clement there were Friars hanged with their regular habite on their backs This assuredly was but iust and necessarie for otherwise the State Ecclesiasticall could not liue in peace Wherefore other States are not free from this necessitie and if his Holinesse would please to measure other mens occasions by his owne he would not condemne Princes for punishing such Priests as liue not like Priests And we must not suppose that in other States there is that perfection which is not in our owne but rather we ought to giue an example of that in our selues which we desire others should be for seeing the euil which ariseth of the contrarie wee shall seeme to haue a feeling of others necessities I know well what answer will be made and that is this that the Pope hath concurring with him the two dignities before mentioned the one of a Prince and the other of chiefe Bishop and therefore as a Prince seeing it necessarie for the good gouernment of his State that the enormious transgressions of the Clergie should be punished by the Secular power he demandeth leaue of himselfe as being high Priest and as he grants it vnto himselfe so he can likewise affoord it vnto others if they request it by way of fauor this is a medicine more insupportable then the disease and hurteth the body more an answer which diuideth also things inuisible Would it not be a more likely thing to affirme that the Pope as he is a Prince knowes how necessary it is for the good gouernmēts sake of a State to punish with temporal authority euerie one which disturbeth the peace though he be one of the Church but he not being able to discerne the occasions of other Princes
but heard some speech of it or if some extraiudiciall discussion had beene vsed heerein why this had beene somewhat but that it should so suddenly and speedily be condemned before it was conceiued or vnderstood this is a great and most scandalous wonder It may be it is not so requisite to extend into a discourse concerning the desert of this cause of Enfiteusi As in the beginning is mentioned seeing such a notable error was committed euen in iudiciall place and calling but because some peraduenture will desire to haue a summarie vnderstanding of the Common-wealths reasons heerein it will not be much from the purpose briefly to touch some of them by which we may cleerely conceiue the lawfull authority which the Senate had for the iustifying of such a law the necessitie that vrged them thereunto and the equitie of the thing instituted and so incidently we may discerne an error which either purposely or by chance crept into the vnderstanding of the words and cause of this law The Pope saies in his Monitorie that the Duke and Senate on the 23 of May 1602 taking occasion vpon a controuersie occurring betwixt Doctor Francesco Zaberella of the one part and the Monks of Pragia of the other they did not onely enact that the Monkes either then or in any time to come ought not to pretend plea vnder any title whatsoeuer to be preferred to enfiteoticall goods possessed by the Laietie nor obtaine propertie in the said goods by the claimes prelation consolidation or extinction of direct line or vpon any other title whatsoeuer their direct right or freehold reserued All these were in the beginning expressed but that the force of this law also was intended and firmely to be extended ouer all other Ecclesiasticall or religious places From this it cannot appeere whether his Holinesse reprehendeth the order of the Senate forasmuch as it extendeth to all places and persons Ecclesiasticall which was decided in the cause betweene the Monkes and the Doctors approuing notwithstanding this foresaid decision in a particular controuersie or whether it may be construed that he reprehends together both the one and other For granting that the Senate had lawfull power to end that sute and to denie that they could ordaine by a generall law that the same should be vnderstood and intended vpon any other such like case occurring I cannot see how a man but of indifferent capacitie can any waies conceiue it considering it is a most euident thing that it belongeth to the same power to make a law vpon an occasion and to iudge particular controuersies occurring in the same Polyt 3. Aristotle sheweth that iudgment is but a particular law and the law a generall iudgement and that it would be sufficient if a Iudge could be found without all partialitie or the law would of it selfe be preualent enough if it could comprehend al particular cases And in Iustinians codex we see L. 3. t 5. ne quis in sua that iurisdiction comprehendeth two heads that is either iudicare or ius dicere the one pertaines to the instituting of that whereon sentence may be grounded and the other in pronouncing the same In Rome the Proctors office was to make generall edicts and to depute Iudges who conformable to them might giue sentence in particular causes If the law were spirituall and the Iudge Secular it could not be vnderstood how he might iudge according to the same Spirituall science and worldly action had no correspondencie the Philosophers say that the rule must be homogenea with that ruled for which cause the Ciuilians affirme with all reason Forum sortiri statutis ligari paria sunt Pau. Cast l. omnes populi ff de instit iur Wherefore he which consents that the Senate hath lawfully determined the cause betweene the Monkes and the Doctor he must needes also grant them power to decree that in generall which hath beene ouerruled in iudgement giuen and ought so to be in all others that shall occurre But if it be vnderstood to reprehend also the examination and end made by the Senate Decius c. quae in Ecclesiarum c. Ecclesia Sanctae Mariae de constâ—â—â—t Alex. cons 201. l. 2. in the case betweene the Monks and the Doctor this may be which manifestly declareth how requisit it was not to haue beene so forward but at first to haue framed a Monitory and principally vpon this point before seeing the processe framed in the sute and controuersie aboue mentioned Considering it is not true that the Doctor was plaintife in that case and the Monks defendants as the Monitorie supposeth it running thus inter doctorem c. ex vna Monachas c. ex altera partibus of the one partie and the Monkes of the other partie But Corsato de Corsati in 1598 hauing bought of Andrea Monaldo eight fields which paied canonate to the Monasterie of Pragia the Doctour 1602. the 12. of Februarie tendred the price to make his draft by border or confine and the second of March the Monkes pretending to be preferred to him as Patrons of the free-hold of those fields they came before the Podesta of Padoua Like our Maior and commenced sute pretending prelation in which cause many actions were tried before the Magistrate till according to the custome of this State by the Doctors Communaltie of Paduaes supplication the hearing of the matter was referred ouer to the Senate The Doctor drew not the Monasterie to a Laie iudgement but the Ecclesiasticks themselues knew well that the determining of this cause belonged vnto a Secular Iudge for this cause they had recourse to the same the which one example onely if there had beene no other gaue iurisdiction to the Podesta and consequently to the Senate in that cause as in expresse words it is declared in l. prima C. de iurisd omn. iudic But besides this firme and solide foundation we may adde another very preualent and vniuersall which is that from time out of minde much before 200. yeeres last past when any plea hath beene of goods possessed by the Laietie giue them the name of emphyteoticall censuall feudatorie lease for long time or what other title soeuer the Ecclesiasticall Iudge in this State hath neuer denounced iudgement therein but alwaies and without contradiction the hearing and iurisdiction thereof hath belonged to the Secular So that by this wee doe not onely prooue that the controuersies betweene the Monks and the Doctor was iuridically determined by the Senate but further that a power is proper to them to make statutes which may dispose and order of those goods aboue named possessed by the Laietie wherein the Church hath directly freehold for vnto them it hath and doth appertaine to determine those controuersies which haue or doe arise about them and aboue we haue made cleere demonstration how it standeth with the same power to make statutes and denounce iudgements There remaine registers in all the
which was likewise ended by comprimise with an expresse declaration that consolidation vpon line extinct should neuer take place A little before that also there grew very dangerous tumults in Ferrara about this very point for pacification of which Pope Boniface the 9. rather as a Soueraigne Prince then as a Pope not out of fauour but by iustice was inforced in fees Emfiteusi and other such like contracts within the territories of Ferrara to take away escheate prelation with consolidation per lineam finitam and to set downe a new forme correspondent to equitie and iustice which might reduce them more to the nature of Censes then of any other tenor and the Doctors also perceiuing the notable dammage the Laietie receiued by deuolution or consolidation by line extinct out of a cōmon opinion they absolutely remooued it affirming that in such a case the neerest kinsman collaterall might claime by iustice to be inuested therein Vide Clar. Valasc Ruin cons 12. vol. 1. Decius consil 131. Bero cons 98. l. 1. Abbas c. bonae de postul praelat consil 113. Curt. Sen. cap. 47. Riminal cap. 44. and being denied he might appeale and many grow to this specification that the Church sought to encroch vpon the stable possession it selfe and also others annexe heereunto that they are not bound to grant the inuestiture but further that they cannot improue nor enhance the Canon It is no wonder if by a law or solemne comprimise in the places aboue named caducitie for Canon not paied prelation in case of sale and consolidation for line extinct are taken away considering that none of these are necessarie or essentiall in a contract But whatsoeuer may be done by a law may be performed by a deed as also custome may bring it in For which cause a long and prescript custome time out of minde this State was of force an hundred and fiftie yeeres since to take away from a little emphyteoticall substance prouided if there then were any caducitie prelation and consolidation and furthet to introduce that more then the paiment of a pension they should be held for patrimoniall and leasable Wee may see the 72. Cons of Panormitano where he discourseth at large that custome was also of that force in Ecclesiasticall emphyteusi to procure in the citie of Vrbine that the condition of caducitie was vtterly remooued The which notwithstanding were more profitable for the Church for by this the Church should gaine the improuements without paying them the which by prelation consolidation or line extinct they could not appropriate to themselues without paying them at a iust rate whereupon by an argument a simili and also a maiore so much the rather may custome take away prelation and consolidation We may adde heereunto that it is not peculiar to this State that some goods emphyteoticall should be made leasable but also in France all Emfiteusi are made such as Ioan. Rub. Auth. Ingressi de Sacrosanctis Ecclesijs testifieth All which things doe euidently shew the equitie and necessitie of such a law The which though the Venetian Senate did not constitute at that time in forme of a written law published through their whole State in generall tearmes yet notwithstanding they haue by vse custome and writing also in causes occurrent made obserued and executed the same from that time hitherto There are many Decrees of the Princes of this Common-wealth with their Colledge which from time to time in controuersies occurring betwixt the Church and the Seculars or betweene Church and Church haue beene resolued and determined not to admit of caducitie prelation or consolidation of profits with the free-hold and sometimes they haue put into their euidences generall clauses which might comprehend all these cases as in Duke Vendraminos daies in 1476. in a rescript made to the Podesta of Monselice vpon such a particular controuersie these words were added nunquam pati volumus etiam in bonis Ecclesiasticis quenquam qui diu tenuerit agrum aliquem iure liuelli quem sumptibus laboribus suis meliorauerit sic de facto expoliari sed tantùm quòd soluat liuellos non solutos and in Duke Moroes time in other rescript to the Rectors of Brescia the yeere 1466 hauing excluded the Abbat of Leno from withholding any of his liuellarie goods solde vnto others there is added Et de hac nostra intentione date dicto Abbati notitiam declarate ne contra eam dictos Christopherum Cornelium inquietet sed acquiescat huic voluntati nostrae quia hoc idem in alijs terris locis nostris seruari volumus facimus in similibus C. de leg l. si Imperialis Afflict d. 313. Menoch vide cons 676. nu 2. 487. nu 3. 973. n. 20. From which we may cleerely collect that this is no new law but from ancient times by custome established and also confirmed not only by the particular iudgemets of Magistrates but by the Prince himselfe Of which the law thus speaketh Si causam Princeps inter partes cognouerit sententiam dixerit est lex in omnibus similibus and according to the Ciuilians they retaine the vigor of a law though they were but decisiue only in a particular case as indeed all the Canon lawes are but in a maner the decisions of particular cases but so much the rather when they are further ioyned with a signification of the Princes will in such like cases with an explanation thereof in generall tearmes as in the aboue specified And these things were performed by the Common-wealth not only the Clergie who were repulsed in their demands but the Nuncioes Apostolicall also and so consequently the Popes themselues seeing and vnderstanding as much yet neuer repealing them and therefore secretly approouing them for iust and necessarie to be put in execution So that what the Senate did deliberate 1602 is a declaration and expression in writing of an old law enterteined by custome and mentioned in direct writings to particular Magistrates euen as also in the selfe same law it is manifestly declared in these words The seruice of our affaires for the quiet and comfort of our subiects requireth that this sute be determined in such a maner as not onely in the present occasion of Zabarella but that for euer vpon any other of the like nature it shall not be determined differently from the good custome and iudgements often times denounced conformable to the same I will not omit to adde that if there had beene the least scruple of offence in that law Pope Clement the Eight during whose Papacie it was published being a very zealous Pope and one that in this citie had verie vigilant ministers would neuer haue dissembled it And if the tenor of this ordinance hath beene read it yet seemes very requisite that hearing custome and iudgements so often to be named therein they should first haue seene and vnderstood what custome and iudgements those were What is he of so meane an intellect
another nor repute it such a sinne to say that he ought also to amend his owne errors committed for not only religious and godly Popes but those also that were lead most of all by humane meanes and policie haue confessed that they might erre and offered themselues to reclamation Innocent the Fourth entreating of a controuersie betwixt him and the Emperour Fredericke the Second vseth these words Si Ecclesia cùm in aliquo contra debitum laeserat quod non credebant parata erat corrigere ac in statum debitum reformare et si diceret ipse quod in nullo contra iustitiam laeserat Ecclesiam vel quod nos eum contra iustitiam laesissemus parati eramus vocare Reges Praelatos Principes tam Ecclesiasticos quà m seculares ad aliquem tutum locum vbi per se vel per solemnes nuncios conuenirent eratque parata Ecclesia de consilio concilij sibi satisfacere si eum laesisset in aliquo ac reuocare sententiam si quam contra ipsum iniustè tulisset c. A sentence therefore of Excommunication hauing beene thundred out against the Duke and Senate and all their dominions interdicted because they will not suffer the libertie of the Common-wealth to be defrauded because they giue not consent for the cooping vp of the foundations whereon it is built because they doe not depriue her of the power granted by God in the administration of the Common-wealth so necessarie for to mainteine the tranquillitie and peace of her dominions because they defend the liues honour and goods of those people committed to their gouernment and to conclude because they haue euer and now do that which they are commanded by his diuine Maiestie And though this Excommunication was denounced without vnderstanding the cause without citation or obseruation of those essentiall tearmes proper to iudgement and ordeined by God in the law of Nature with an affection farre different from that which his diuine Maiesty commandeth without due aduice and flat against the doctrine of the holy Fathers sacred Diuines and the Pontificiall constitutions themselues yet remaines it to be considered vpon for all the iniustice thereof is so cleere and the nullitie perspicuous and plaine what the princes dutie in this case is and how he ought to beare himselfe herein before God and his holy Church At the first sight somebody may aduise peraduenture that it were good to follow herein the counsell of S. Gregorie Sententia Pastoris siue iusta siue iniusta timenda and so to commend his cause vnto God with assurance that patiently to support vniust censures will turne to his great merit before the Maiestie of God An excellent course and counsell for an innocent which could not shew the equitie of his owne cause but for a Prince that hath so cleere and manifest reason on his side a more pernicious way cannot be taken either for himselfe his State or the seruice of God which must be respected aboue all other things For a Prince is more bound then a priuate man to feare God to be zealous of his holy faith to reuerence Prelats that he discharge Christ his place but so he is more bound to auoid hypocrisie and superstition to preserue his dignitie to maintaine his State in the exercise of Religion to take heed lest that do not happen to his people which sometimes fell out to the Iewes through Moses long absence who thinking that in him they were depriued of the true God they made them one of gold a thing which if it were well considered the world would not be at that passe which now it is That saying is not so generally true sententia Pastoris siue iusta 11. q. 1. c. sententia siue iniusta timenda as some Doctors interpret it who haue introduced and would maintaine in the Church of God a power which in name should bee called Ecclesiasticall but in deed is Temporall There is another Canon made by Pope Gelasius he that went before Gregory and no lesse famous in doctrine and sanctitie then himselfe where he saith 11. q. 1. c. cui illata Si iniusta est sententia tanto curare eam non debet quanto apud Deum eius ecclesiam neminem grauare debet iniqua sententia Ita ergo ea se non absolui desideret qua si nullatenus perspicit obligatum These two holy Fathers are not so opposite as the words may seeme to import But Theologicall doctrine will verie well reconcile this apparent contradiction There are some vniust censures because they are denounced with a peruerse minde and intention although it were vpon a iust and lawfull cause there is no doubt but all men will yeeld that these are to be feared and that before God they oblige vs as if they were iust although the Magistrate in his wicked intention offendeth his diuine Maiestie and of this it may be vnderstood that sententia Pastoris siue iusta siue iniusta timenda est Some are in trueth grounded vpon an vniust cause though in apparence iust by reason that in things humane the truth is oftentimes so concealed as it is not possible to discouer it so that an innocent sometimes may be cōdemned without any fault in the Iudge This kind of sentence obligeth vs not towards God neither ought it to be feared before his diuine Maiestie or in conscience although he condemned be bound to make a shew of feare not to scandalize his neighbour who esteemeth that sentence good and to liue towards God as his innocencie requireth before the world that thinks him culpable if he cānot manifest the truth to liue in patience so to commend his cause vnto God But if the sentence be vniust denounced without a lawfull cause neither in trueth nor in apparence wee must not onely not feare it but with all our power we are bound to oppose our selues thereunto This doctrine is established in eleuen Canons in the Decretorie Cáp. qui iustus c. cui illata cap. secundum Catholicam c. coepisti cap. remerariè cap. quod obesse cap. quò c. illud planè c. non debet 11. q. 3. cap. manet 24. q. 1. c. si quis 24. q. 3. and it is so receiued amongst all Diuines and Canonists that no one of them differs from another as also they agree in this point that none can be excommunicate except it be for mortall sinne the which must be prosecuted also after he hath been first admonished by the Church Hee that will but read all the foresaid Canons may be fully instructed that he need no whit to doubt but that vniust censures doe no waies oblige or offend and that they are not to be esteemed And so much the rather he may vnderstand this trueth if he reade but the authors in the fountaines themselues out of whom these Canons are taken for the words both before and after will make the matter more manifest The sentence vniust in trueth but yet iust in