which sees not how this proceeding hath beene without vnderstanding the cause and that many particularities haue beene purposely kept backe by them which should haue beene related to his Holinesse for verification of this act they conceiuing well that all these things were necessarie to be vnderstood before the comming to treat an execution But it seemes there was such a speciall desire that these thundrings should come forth as for feare of meeting with somewhat which might diuert it they shunned the verie sight of any thing that might remooue his Holinesse minde from such a deliberation If the intended breuitie of this present discourse would permit it should euidently be made knowne how beyond all reason it is said in the Monitorie hauing reference to this law as it appeares Cumque praemissa in aliquibus Ecclesiarum iura etiam ex contractibus initis ipsis Ecclesijs competentia auferant As also withall it would be cleere that by that law there is no ius quaesitum taken from the Church nay and which is more the same continuing in vigor and force there remaines still to the Church a most easie and readie way to retaine omnia iura quaesita sibi competentia It was neuer the custome of this Common-wealth to take away ius quasitum from any body whosoeuer much lesse from the Church but he that will iudge of others lawes without erring it is necessarie that he first vnderstand and haue full information of them not to proceed to their condemnation before he haue so much as lookt into their foundations I haue spoken more of this matter then was conuenient for this discourse yet is it not the least part in respect of that which remaines behinde And if occasion be offered to make knowne the foundation of this law euerie one shall perceiue how it is grounded vpon iustice and equitie and how lawfull the authoritie of the Senate was to constitute it Now let vs returne againe to deliuer that which yet hath beene vnspoken of concerning the matters aboue discoursed of If the Pope preuented of his more mature deliberation would not admit of reasons so cleere and euident as those before declared and so to haue iustified the cause of the Common-wealth yet at least perceiuing that all Europe had lawes like vnto these which he so sharpely reprehended and that such a number of approoued Doctors hold a contrarie opinion to himselfe hee might haue held the case doubtfull and haue proceeded with circumspection calling to minde that excommunication is a grieuous penalty and an odious matter and as the Canonists affirme Sirictissimè interpretanda Neither is it vnderstood that any one incurs the same when the words of the Canon are ambiguous or generall the which may not be wrung to an other case by way of similitude and much lesse with an argument a minori For if one giue a Priest a boxe on the eare he is excommunicate but if he shoot an harquebusse at him and that in the Church and hit him not he is not excommunicated for this though the second offence is an hundred times greater then the first Let it be granted that whosoeuer makes statutes against Ecclesiasticall libertie ipso facto is excommunicated This point must also be cleared whether the Venecian statutes be against the libertie of the Church and it hath beene prooued with most effectuall reasons that they are not the which also though they were it appeareth by act and not by discourse that the like lawes haue beene receiued all Europe ouer and we see in Print how many writers doe iustifie them Then this is out of doubt at least that they are not absolutely against the Popes authoritie as it is supposed Vnto which let me annex this that being not yet decided what Ecclesiasticall libertie is as hath beene said and the Doctors not agreeing thereupon much lesse can they be out of doubt that these lawes and acts are against it But for al this in a matter of which according to some mens opinions there is controuersie and that in so many points remaines doubtful out comes me headlong an Interdict or excōmunication without foreseeing or maturely considering the inconueniences which saith the Chap. De sentent excom in 6. Alma Mater ensue of such censures that is the people lose their deuotion heresies are brooded infinite dangers grow to mens soules and without the peoples fault due seruice is taken away from the Church Surely Christian pietie required that the woorthinesse of this cause should first with all diligence haue beene examined neither should lesse then a good opinion at least haue beene borne towards a Common-wealth so pious and deuout Euery Prelate is bound first in himselfe to conceiue the woorthinesse of the cause and then with Christian loue to acquaint others with the same and as S. Paul teacheth in spiritu lenitatis Gal. 6. the which as it would haue produced some excellent effect being obserued so being neglected it hath caused great euill which now may alreadie be seene and further greater dangers which still hang ouer our heads The Pope in his Monitorie of the 17 of Aprill saith that the Duke and Senate of Venice haue many yeeres past made sundry statutes through which they did incurre censure but amongst others he specially names three vpon which he discendeth to fulmination except they be reuoked within foure and twentie daies Euery good Christian may heere desire to vnderstand that seeing a great number of different and sundry statutes haue beene made by a Common-wealth to the soules preiudice and that for euery one of these she hath incurred Ecclesiasticall censure being further bound to cashiere and annihilate them all why is the Senate told but onely of three We neither can nor must beleeue that the other would be omitted for the damnation of soules and therefore at this present why are they not all treated of When any one meetes his owne debtor hee may aske him a part of his debt and as he is principall hee may remit the rest or the whole but an agent or factor can not doe this except by a commission from the principall If diuers and sundry statutes made some yeeres since offend God the Common-wealth is bound to reuoke them all and in but reuoking of three they should not sufficiently discharge their dutie Iac. 2. S. Iames saith Quicunque totam legem seruauerit offendat autem in vno factus est omnium reus Our Sauiour commanded the vse of excommunication for sinnes which procure the soules preiudice when he saith Si peccauerit in te frater tuus Matth. 17. and S. Paul expresseth what these were saying Si is qui frater nominatur est fornicator aut auarus aut idolis seruiens aut maledicus aut ebriosiu aut rapax cum huiusmodi nec cibum sumere Wherefore at this present we may alledge what the Sonne of God sometimes said Matth 23. Vae vobis qui decimatis mentam anetum
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
Chanceries of this citie of iudgements giuen by a Secular Iudge since they haue beene subiect to this State and not one can be produced which was tried in an Ecclesiasticall Court And it cannot be tearmed an vsurpation seeing the Clergie haue not beene drawne to these Courts as defendeÌ„ts but they haue voluntarily appeared as plaintifes that which ouerthroweth this claime more then any thing else is that in such controuersies betweene Church and Church they themselues haue appeared in the Secular Court to demand Iustice against another Church Nay and out of doubt it may certainly be beleeued that the beginning of this introduction hath beene very Canonicall seeing the Clergie of that time were also very good men and zealous in the Churches behoofes and in like maner the Popes were most exact mainteiners of the Ecclesiasticall Iurisdiction and so as well the one as the other knew very well the title of that ground for which they came in sute before the Secular nor none of them euer reprehended this course of iudgement but rather securely we may affirme that they themselues haue brought it in And there is an expresse constitution of Iustinians that custome alone giues as great iurisdiction as a law made But in that his Holinesse saith in his Monitorie C. de eman lib. l. vlt. that the Senats ordinance constituteth in bonis Ecclesiasticis emphyteoticis it must necessarily be that either his ministers haue had some other copie or writing then the true originall or else that transported with affection they supposed they saw that in it which cannot be found neither in words nor sense because that emphyteoticis is not there either formally or in equiualent words and they can no waies excuse themselues by saying they thought that the sense had beene so as they haue expressed it that it is not lawfull to relate an other mans speech in other words but especially in such a manner as to restraine that to one kinde which was spoken generallie The law saith that Churches may not appropriate vnto themselues goods possessed by the Laietie their direct title and right notwithstanding reserued It is not true that there is distinction of directum and vtile onely in Emfiteusi but both these claimes concur in patrimoniall goods both the which are treated of in a title of the second booke of Iustinians Codex whose direct right may lie in the Church tit de sun patrim L. siquis fundos L. fundi patrimoniales L. hi quibus if the Prince haue giuen them it and although this maner of possessing was out of vse in Italy vnder the French Emperors and their successors and instead thereof there hath come in fee-simple yet doth there remaine in Churches but especially those cathedrall some goods of this nature which were giuen before the Emperours of Constantinople were wholly excluded from the Empire of these adiacent regions in lease perpetuall or perpetuities there is directum and vtile where notwithstanding as also in the lands aboue mentioned neither relation nor consolidation nor extinction of line take any place as Couaruuias and Valasco who are cited by many Doctors doe effectually prooue although some not very circumspect hold the contrarie A great part of the direct titles of Churches in these low Countries neere the sea which sometimes were marishes and vallies are of this kinde for this soile being altogether vnder water and reaping no fruit from it but reeds and flags they were let out for euer or at least for a wonderfull long time at a verie easie rent answerable to the profits that they yeelded though now through the wonderfull charge of the Secular both publike and priuate in raising of the ground drenching of the marishes and draning of the water they haue beene reduced to the State wherein they are whereupon the Church hath no reason in this neither by written euidence equitie of pretending prelation deuolution or vnder any other claime to appropriate them to themselues and of these the law of the Senate in a great part entreateth as also it constituteth vpon other kinde of goods as shall be expressed For it must needs be that a pension was paied to the Church either by the claime of a reseruatiue cense or imposition or that the Church in ancient times vpon sutes made haue couenanted this reseruation or that hauing beene reserued by other Lords the sellers it was afterwards giuen to the Church by them In which case this reserued cense or taxe out of doubt belongeth to the Church in perpetuum but ouer the possession stable there remaines in no sort any title vnto them by vertue of which they may pretend consolidation prelation couenant or other such like actions Fee-simple is also of this nature that in it direct title is distinguished from profits and I wonder when they would needs adde to the law of the Senate and declare it in another sense then the truth therof imported with that word Emphyteoticis why to change and adulterate it the more they said not Feudalibus but peraduenture they would not proceed so farre because they could not hope it would neuer be spied it being a vulgar word and well vnderstood of all men The word Emphyteoticis is somewhat more vnknowne and therefore was thought the fitter to be secretly put in and therefore I cannot forbeare to replie that in the Senats law the word Emphyteotici is not vsed but it generally speakes of all contracts and manner of possession wherein the two titles of directum and vtile stand diuided neither is it lawfull for any body to restraine or expresse it contrary to the true sense thereof to the end the better to bring in the conclusion following set downe in the Monitorie which otherwise could not haue beene deduced Cùm praemissa in aliquibus ecclesiarum iura etiam ex contractibus initis ipsis ecclesijs competentia auserant It is no new matter that the Spiritualtie to enter vpon goods possessed of Seculars haue assayed to bring in this name of Enfiteusi into their titles by which they receiue a canon or pension but two hundred yeeres agoe diuers cities of Italy haue stood out against them for this cause and they themselues haue otherwhiles beene constrained to giue ouer their pretences and titles and to be contented with their bare canon comming in In the same citie of Padoua Extant authentica capitula transact about an hundred and fiftie yeres since great controuersies grew betwixt that Communalty the Monks of S. Iustina and Pragia vpon this point the which they ended by comprimise where amongst other things it was set downe that in all their goods neither escheat prelation nor consolidation for diâ—ect line extinct should take any place as the citie then constantly auerred that from time out of minde it had beene the vse and custome of the place Paula Cas l. Consil 244. In Vrbine also before that time there fell out a great controuersie betwixt the Clergie and the people the
appearance and which to auoid scandall ought to be feared cannot grow but from an errour in the fact for the case being deliuered in sincere trueth the Iudge which erreth in discerning of equitie though it were through ignorance is alwaies in fault therefore whatsoeuer sentence is vniust through manifest errour in iure it is nothing nor of any validitie neither doth it binde vs before God or before the world In that for which the Pope thundreth out this present excommunication there is no errour at all in the fact the trueth is most cleere the lawes of the Senate are in writing the delinquents accused and imprisoned there can be no concealed innocencie which may appeere to be a fault The question is in iure we must see whether in the lawes made or in the imprisonments decreed there is any errour committed for if neither the Prince nor Senate haue offended but haue contrariwise obeyed the commandements of God in procuring the preseruation of their subiects honours liues goods as at large in all these points hath beene declared we can no waies doubt of the iustice of the Senats cause and consequently of the nullitie of the sentence Pontificall but especially and by which this is made manifest there needs not such great dexteritie of conceit to apprehend them but with very slender cōsideration they appeere manifestly to all men wherefore considering the innocencie of the same Senate before God euidencie also thereof before the world there remaineth no scruple wherein iust scandall may be giuen In like maner there is no reason why they should in any sort feare this excommunication neither in conscience nor in any externall triall except as any one may feare a manifest violence offred to a sinister end considering it is a manifest violence to vse the power of excommunication granted by Christ contrarie to his owne institutions and towards him which hath power and vniustly vseth the same the remedie is to haue recourse vnto a superior if he may but if there be no superior to whom to haue recourse God hath allowed no other remedie to a Prince thus offended but to make resistance with his owne force opposing himselfe to force because it comes frō God the ciuil being of euery Common-wealth or kingdome is to the end of his glorie and therefore a Prince cannot permit without a sin and offence that his owne libertie should be infringed which is the ciuill being of euerie principallity and there is no doubt but negligence in defending of it is a greeuous offence vnto God and most hainous if he voluntarily suffer it to be vsurped ouer his head To obey the commandement of God therefore wee must oppose our selues against him whosoeuer that would take away the power which God hath giuen to make lawes with iustice to defend the foresaid offended in their liues honours and goods And as the innocent by an error in facto vniustly excommunicated to auoid scandall is bound patiently to endure so when the error is in iure and the manifest iniustice thereof is apparent to auoid scandall likewise the Prince is bound to resist and to oppose himselfe against this iniurie because there is no doubt but when this shall be knowne to other kingdoms where the like vnto the Venetian lawes are obserued and where malefactors are iudged after a conformable maner that the Cōmon-wealth for feare of vniust censures and those inualidious hath yeelded vnto violence and omitted to exercise and execute his naturall power they would be much and exceeding scandalized heereat as also the subiects that should discouer such a vaine feare they would become very peruerse And therefore for this point also it was both equall and necessarie for the Prince to make due resistance So that the Popes fulmination being vniust and nothing it followes consequently that for necessarie defence the obstacle of the Common-wealth in the publication and execution thereof hath beene most iust and lawfull And the Common-wealths subiects but especially those of the Clergie ought to pacifie their minds and consciences attending the seruice of God vnder the protection of the Prince constantly beleeuing that the holy Ghost was promised and giuen to all the faithfull among whom Christ himselfe is present when they are congregated in his name and that none can iustly be excluded out of the holy Catholicke Church except by his owne worthy demerits he be first excluded from the fauour of God And that the obedience which God commands vs to performe to our Ecclesiasticall superiors is not a foolish or ridiculous subiection nor the power of Prelates is not an arbitratorie iudgement but both the one and other must be ruled by the Law of God who in Deuteronomie ordeined not an absolute obedience to the Priest but a prescribed obseruance Deut. 17. according to the law diuine Facies quaecunque dixerint qui praesunt loco quem elegerit Dominus docuerint te iuxta legem eius God only is an infallible rule we must onely professe obedience vnto him without all exception He that generally professeth this towards others without the commandements of God sinneth and whosoeuer supposeth any humane will to be infallible committeth great blasphemie in ascribing to the creature a propertie onely diuine Absolute obedience is onely rendred vnto God an obseruance limited within the bounds of lawes diuine And this they vsed in the ancient Church we haue an example hereof in the Acts of the Apostles written by S. Luke That the faithfull thought the contrarie of S. Peter and withstood him about the vocation of the Gentiles and yet were they not thundred against with hideous excommunications or threatned by him and forced to hold their peace but by the reason and authoritie of diuine reuelations and the words of our Sauiour 1. Cor. 13. they were taught and perswaded Christian charitie sayth S. Paul Patiens est benigna est non inflatur non est ambitiosa It threatens not it destroyes not it entreateth all men like brothers Considering that Prelates must not domineere nor command with empire 1. Pet. 5. but with examples and instructions of pietie and charitie le ts heare S. Peter a little Pascite qui in vobis est gregem Dei prouidentes non coacte sed spontaneè secundum Deum 2. Cor. 1. neque turpis lucri gratia sed voluntariè neque vt dominantes in cleris sed formafacti gregis ex animo and S. Paul Non quia dominamur fidei vestrae sed adiutores sumus gaudij vestri And a Prelats charitie should be as readie to teach as to be taught of others for when S. Peter erred in Antioch Gal. 2. S. Paul forbare not to reprehend him grieuously in the presence of all men and let no man heere replie who is like to S. Paul that may be so bold as though S. Paul by reason of his excellencie might be the bolder to oppose himselfe against one whom it was not lawfull to resist nay but we may iustly and constantly affirme quite contrary who is like Paul that may be compared vnto him in humilitie and acknowledgement of himselfe and of due reuerence to the high Priest Questionlesse we may vndoubtedly beleeue that as S. Paul in all the vertues farre exceeded whatsoeuer we are able to performe so in due reuerence to the head of the Church Rom. 15. he obserued that which the least of vs is bound to performe The holy Scripture saith Quaecunque scripta sunt ad nostram doctrinam scripta sunt The holy Ghost would neuer haue written this Historie but for our example to the end we might imitate it and we see that all the Doctors in discussing how any one may oppose himselfe to the Pope when he commiteth error and gouernes vnwoorthily they haue recourse to this example Let no man therefore be astonished depending onely on the authoritie of a Prelate Mat. 16. let him remember That not one but two keyes were giuen to Peter and if they be not both vsed together the effect of loosing and binding doth not ensue the one being of power and the other of knowledge and discretion Christ gaue not a power to be vsed without due knowledge and circumspection but with great and exquisite iudgement the which wanting power onely takes no effect The Canonists say that the power of binding and loosing is intended by a key not erring and S. Leo the Pope 24. q. 1. c. Manet expresly affirmeth it in a Canon speaking of this priuiledge giuen by S. Peter Manet ergo Petri priuilegium vbicunque ex ipsius fertur aequitate iudicium nec nimia est vel seueritas vel remissio vbi nihil erit ligatum vel solutum nisi quod Beatus Petrus soluerit aut ligauerit FINIS