now there is a generation of men who do not think the Clergy necessary Men to be consulted that will interpret Scriptures remove the Ark of God as it were and do things without the presence vote and suffrage of the Chief Fathers of the Levites which how it agreeth with this pious Example of King David and King Iames's Meditations upon it I leave to be Considered CHAP. VII I◠the first frame of our English Common-wealth the Bishops in every Diocess were the principal Iudges The Charter of William the Conquerour for the dividing the Courts The Statute of Circumspectè agatis 13. Ed. 1. and Articuli Cleri 9 Ed. 2. appointing what Cause shall belong to the Ecclesiastical Courts THe first frame of our English Common-wealth was so setled and ordered by the Saxon Kings when once they became Christians That the Bishop of the Diocess together with the Aldermen of the County and so their Deputies in-inferior Courts under them should be equal Judges together upon the same Bench in the same Courts and there determine all Causes in the forenoon Church-matters and in the afternoon secular business as Selden sheweth in his notes upon Eadner p. 166. and Bishop Iewel in part observes in his Defence of the Apology Part 6. p. 522. This Course continued till William the Conquerour and perhaps it had been very happy for our Kingdome if the frame of our Laws and Courts had so still continued joyned together for many reasons that I will not now further insist upon Gulielmus primus sacrum à Civili discriminavit forum etenim florente Saxonum imperio mutuas injure dicundo veluti tradebant operas atque eodem utebantur his quotannis for◠Dioeceseos Episcopus simul provinciae Praeses seu vice-Comes quem Sheriffe nunc dicimus interdum Ealderman nominabant c. The Conquerour first separated the Temporal Courts from the Ecclesiastical yet not diminishing the authority of the Churches Jurisdiction which by his oath he confirmed and promised to preserve affirming Quod per Ecclesiam Rex regnum solidum habent subsistendi fundamentum So that he subverted rather Ecclesiastical power and jurisdiction but as formerly in the County or in the Hundred so now in the Bishops Court all Ecclesiastical Causes were heard and determined For the old manner the Laws of King Edgar do shew it Cap. 5. Intersit unusquisque Hundredi Gemoto ut superius est praescriptum habeantur burgemottitres quotannis duo vero scire-gemotti de istis adsunto loci Episcopus Aldermannus doceatque alter jus divinum alter saeculare In Hundredo aderant Thani quos Barones vocant posteri ut patet e. L. Ethelredi Cap. 1. ipsique judices Ecclesiastici cum partis illius Clero in Hundredo enim non minus quà m in Comitatu unà haec agebantur quae ad forum pertinent Ecclesiasticum quae ad saeculare donec Gulielmus Conquestor divisis jurisdictionibus hanc ab illa separavit For the Division of the Courts and the Erection of the Ecclesiastical to sit by themseves under the Bishop and Arch-deacon it appears by the Charter of King William to the Dean and Chapter of Lincoln And though it be sent in the direction by name to them only yet it seems it grew after to be a general law no otherwise then the Statute of Circumspecte agatis that hath a special reference onely to the Bishop of Norwich as Lord Coke saith 2 Instit. 487. The Bishop of Norwich is there put but for example but it extendeth to all the Bishops within the Realm And so Selden telateth in his History of Tithes Cap. 14. Sect. 1. and in his Ianus Lib. 2. Sect. 14. And in his notes upon Eadner p. 167. The words of it as they are recorded are Willielmus gratia Dei Rex Anglorum Comitibus vice comitibus omnibus Francigenis Anglis qui in Episcopatu Remigii Episcopi terras habent salutem Sciatis vos omnes coeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum sanctorum Canonum praecepta usque ad mea tempora in regno Anglorum fuerunt Communi Consilio Cousilio Episcoporum Abbatum omnium principum regni mei emendandas judicavi Propterea mando regia authoritate Praecipio ut nullus Episcopus vel Archidiaconus de Legibus Episeopalibus amplius in Hundret placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundret sed seeundum Canones Episcopales leges rectum Deo Episcopo suo faciat Which I the rather transcribe saith Selden because also it seems to give the Original of the Bishops consistory as it sits with us divided from the Hundred or County Court wherewith in the Saxon times it was joyned And in the same Law it is added further Hoc etiam defendo ut nullus laicus homo de legibus quae ad Episcopum pertinent se intromittat Thus Selden Only the words of the Charter are more fully recited out of the Records by another Learned Author Si vero aliquis per superbiam elatus ad justitiam Episcopalem venire noluerit vocetur semel secundo tertio Quod si nec ad emendationem venerit excommunicetur Et si opus fuerit ad hoc vindicandum fortitudo justitia Regis vel vicecomitis adhibeatur Ille autem qui vocatus ad justitiam Episcopi veniro noluerit pro unaquaque vocatione legem Episcopalem emendabit Hoc etiam defendo mea authoritate interdico ne ullus Viceeomes aut praepositus aut minister Regis nec aliquis laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat Iudicium vero in nullum locum portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit And the punishment for disobedience to the Ecclesiastical Judges was much alike as formerly was enacted under the Saxon Kings as by King Alured Si quis Dei rectitudines aliquas deforciot reddat Lathlite cum Dacis Witam cum Anglis And the same Law is afterwards confirmed and renewed by King Canutus and by other Kings Whereby it appeareth how before the Conquest and likewise after for a long time the authority and jurisdiction of the Church was maintained and upheld by the setled Laws of the Kingdome How they had power in their Courts to excommunicate and further by the help of the King and the Sheriffe to proceed against stubborn offenders and such as opposed or contemned their authority so that here is
the Judges But Ministers have no remedy to help themselves there being none of the Clergy upon the Bench in any authority CHAP. II. Of the Government of the Church and State of Israel by Moses and Aaron and their Successors until Christ about 1500 years That there were not two several Iurisdictions one Ecclesiastical the other Civil WHen God delivered his chosen people out of Aegypt and conducted them through the Wildernesse towards the promised Land of Canaan He began first to publish his Law And by Moses delivered them many Laws in Five Books Whatsoever Lawes he gave either moral ceremonial or Judicial they are all contained in the Five books of Moses and no man could better understand them then the Priests and Levites For God made his Covenant with Levy of Life and Peace The Law of Truth was in his mouth The Priests Lips should preserve knowledge and they should seek the Law at his Mouth Mal. 2. 5 6 7. and so Ezekiel 44. 23. They shall teach my people the difference between the Holy and prophane and cause them to discern between the unclean and the clean and in Controversie they shall stand in judgement and they shall judge according to my Iudgements and they shall keep my Lawes and my Statutes in all mine Assemblies They being the principal Judges and Lawyers in that Common-wealth of Gods own Constitution And whereas it is now granted on all hands that there were three Courts of Justice in that Kingdome 1. The great Council of the 70. Elders 2. The Court of Judgement which was in in every good Town where there were many families 3. The Court of three or some few more The Priests and Levites were principal men both Judges and Officers in all Courts Scophtim Scoterim as 1. Chron. 23. 4. both to give sentence and judgement and also to execute the same So the Divines do affirm in their late Annotations upon 1. Chron. 26. 29 30. 2. Chron. 19. 8. 11. They did study the Judicial and politick Laws and had power to see the Law of God and Injunctions of the King to be observed and to order divine and humane affairs And they held also other honourable offices for we read that Zechariah a Levite was a wise Counsellour and Benjah a Priest Son of Iehojadah was one of Davids twelve Captains being the third Captain of the Host for the third month and in his course consisting of 24000. was his Son Amizabad Benjah also was one of Davids principal worthies having the name of the three mighties He was also Captain of the guard to David and after the Death of Ioab he was made Lord General of the Army by King Salomon in Ioabs room 1. K. 2. 35. It is recored 1 Chron. 26. 30. That of the Family of the Hebronists Levites there were a thousand and seven hundred Officers on this side Iordan westward in all businesses of the Lord and in the service of the King and two thousand and seven hundred chief Fathers and men of valour whom King David made Rulers over the Reâ—bonists the Gaditeâ—s and the half Tribe of Manasses for every matter pertaining to God and affairs of the King v. 31. 32. Whereby it manifestly appears that the same Judges and Officers being Priests and Levites most of them did hear and determine all sorts of causes pertaining to God and affairs of the King both Ecclesiastical and Temporal so that there was not several Courts the one Ecclesiastical and the other Civil as in these times some do affirm too peremptorily according to the Common practise and usage of these days as Godwin in his Moses and Aaron lib. 5. Beza Iunius and divers others with the Kirkmen of Scotland lately Rutherford Gillespie Baily and others So also the Papists generally who that they may establish the Popes Supremacy above Kings and their Common-laws do affirm that Regimen Ecclesiasticum est distinctum a politico as Bellarmine de Romano pontifice lib. 1. cap. 5. so our zealous party for the like ends and reasons would maintain a Government in the Clergy seperate from and independent upon the Civill Magistrate and such as ought to be directed and ruled only by the word of God and his Spirit ruling as they suppose in their classical Assemblies where they think the Throne of Christ is only to be advanced and all his holy Ordinances put in execution Whereas the King is Custos utriusqne tabulae and the Supremacy in causes Ecclesiastical as well as Temporal is acknowledged by our Statutes and annexed to the Crown For Execution thereof an Act was made 1. Eliz. cap. 1. But if the Statute had not been made to annexe the Supremacy to the Crown yet as the Lord Cook saith 4. Instit. p. 331. King Iames hath and Queen Elizabeth had before him as great and ample Supremacy and Jurisdiction Ecclesiastical ase ver King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Law of England if the said clause of annexation in the said Statute 1. Eliz. had never been inserted But Iohn Pym in his Speech in Parliament 4. Caroli as Rushworth hath it in his late Collections saith that the high Commission was derived from the Parliament As if the Parliament gave the King the Supremacy as a gift of their own and that it was not vested in the Crown but as they gave it so they may take it away when they please and suppresse the Court of high Commission as they have done The duty of the Court was to reform and correct all Heresies Schismes Abuses Offences Contempts and Enormities But now upon Suppression of the Court all Heresies and Schismes in the world are broke out and such abominable abuses offences and enormities as never were known in this Kingdome with allowance and toleration This follow 's upon the new light and doctrine of Iohn Pym and all the rest of the Presbyterians who have stirred up all these troubles and of late they called the House of Commons the Supream power of the Nation in all Addresses and Petitions made unto them It was a great Error of Calvin and Beza and many others that follow them to affirm that there was one Court Ecclesiastical and another Civil in Israel Calvin upon Ieremiah 19. 1. pag. 152. saith Scimus duos fuisse ordines publicos vel duplex regimen ut loquuntur sacerdotes erant praefecti Ecclesiae nempe quoad legem ita ut spiritualis esset eorum gubernatio erant seniores populi qui prae erant rebus politicis utriusque vero quaedam inter se communio Calvin understood only the plain Hebrew not the Rabbins and Talmud nor the Jewish Antiquities Therefore in several places he is mistaken as upon Numb 11. 17. Where God appointed first the 70. Elders to be joyned as Assistants to Moses He doth interpret the Text I will take off the Spirit that is upon thee and put
the Councel of Clarendon under Hen. 2. Wherein the Clergy were inforced to appear in the Temporal Courts one Canon thereof being Clerici accusati de quacunque re summoniti a Iusticiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum in Curia Eeclesiastica unde videbitur quod ibi sit respondendum It a quod Regis Iusticiarius mittet in Curiam sanctae Ecclesia ad videndum quomodo res ibi tractabitur si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Council Math. Paris doth sharply inveigh against them Hanc Recognitionem five Recordationem de Consuetudinibus libertatibus iniquis dignitatibus Deo detestabilibus Archiepiscopi Episcopi clerus cum Comitibus Baronibus proceribus juraverunt And as he addeth His itaque gestis potestas laica in res personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmur antibus Episcopis potius quam resistentibus usurpabat And this appeareth also by that which Selden relateth in his notes upon Eadner pag. 268. that long after in Edward the seconds time the Clergy had so many oppositions and hinderances in their proceedings from the Temporal Courts that they exhibited a petition in Parliament wherein they recite the grant and constitution of Will 2. allowing them their own Courts by themselves and specify their complaints particularly which he calleth Gravamina Ecclesiae Anglicanae and saith they are those mentioned in the proem of Artiâ—uli Cleri And in this age we have great cause to complain of Prohibitions but thereof I will say no more now as for the Temporal Courts the Conquerour appointed them to follow his Court royal which Custome continued for many years till under King Iohn at the instant request of the nobility it was granted Ut Communia placita non sequerentur Curiam i. e. Regis sed in loco certo tenerentur That the Court of Justice for Common Pleas should not follow the Kings Court Royal but be held in a place certain as now commonly they are in Westminster-Hall Whereas before the Kings appointed one Grand Lord Chief Justice of all England who for his authority and power was a greater officer both of State and Justice then any in these last ages and ever since that the greatness of that office was abated by King Edw. 1. most of those great Justices were Bishops as Sir Henry Spelman sheweth in his Caralogue of them Glossar pag. 401. Dignitate omnes Reges proceres potestate omnes superabat Magistratus De potestate valde inter alia claret quod quatuor summorum judicum hodiernorum muneribus solus aliquando fungeretur scilicet Capitalis Iustitiarii Banci Regis id est plâ—citorum Coronae seu criminalium Capitalis Iusticiarii Banci Communis id est placitorum Civilium Capitalis Baronis Scacarii hoc est Curiae ad sâ—crum patrimonium fiscum pertinentis c. Most of these great Justices were Bishops as appears by the Catalogue of them they being the principal men for Knowledge and Learning in those dayes and had no doubt power of voting in all Parliaments Councils and assemblies of State And so in these later times Lord Coke sheweth their abilities and rights 4. Instit. pag. 321. The King is well apprised of all his Judges which he hath within his realm as well spiritual as temporal as Arch-bishops Bishops and their officers Deanes and other Ministers who have spiritual jurisdiction It is declared by the King the Lords Spiritual and Temporal and the Commons in full Parliament That the spiritualty now being called the English Church always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it hath been alwayes thought and is also at this hour sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine of such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain The Adversaries have made divers objections against our Arch-bishops and Bishops Ever since saith Coke But these pretences being in truth but meer Cavils tending to the scandal of the Clergy being one of the greatest States of the realm as it is said in the Statute of 8. Eliz. cap. 1. are fully answered by the said Statute and Provision made by authority of that Parliament for the establishing of the Arch-bishops and Bishops both in praesenti in futuro in their Bishopricks By the Statute also of 39 Eliz. cap. 8. the Arch-bishops and Bishops are adjudged lawful as by the said Act appeareth And by these two Statutes these and all other objections against our Bishops one hath answered which we have thought good to remember seeing we are to treat of their jurisdiction Ut obstruatur os iniquae loquentium saith Lord Coke Yet the fury and rage of these times have stirred up more anger which in the issue will turn to the Confusion and Dishonour of them that began these wars and broyles against the Church and Bishops and fundamental Laws and Statutes which have so fully asserted their rights and authority Thus the Lord Coke premiseth being to treat of the Ecclesiastical Courts and all the jurisdiction belonging to the Clergy and established by the fundamental Laws of the Land against both Papists and Puritans and first he beginneth with the Court of Convocation and of the high Commission in Causes Ecclesiastical which is absolutely necessary for the suppression of all manner of Errots Heresies Schismes abuses offences Contempts and enormities But upon suppression of this Court by the late long Parliament there hath broken forth such an infinite number of heresies schismes sectaries and a rascal rabble of factions as is prodigious to relate and intolerable to be suffered For as it is in the Common Law if there were not Assises and Sessions to punish Malefactors Theeves Cuâ—purses Offenders and Rogues of all sorts the Land would be so Oppressed with the Multitudes of them no man could enjoy his house or goods freehold or life therefore in London they have every moneth a publick sessions to punish Condemn and Execute all sorts of Malefactors And Corporations in principal Cities have the like authority by Commission and Patent from the King But for the high Commission to punish Offenders against Religion and the Church Lord Coke saith pag. 331. That the Kings Majesty hath and Queen Elizabeth had before him as great and ample Supremacy and jurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the said clause of annexation in the said Statute of 1. Eliz. had never been inserted That it was a gâ—osse Error
it on him as if the gifts of the Spirit which Moses had were diminished in him and imparted to the 70. which is untruly said by Calvin for as Salomon Iarchis saith Moses in that hour waâ— like the Lamp that was burning on the candlestick in the Sanctuary from which all the other lamps were lighted yet the light thereof was not lessened any whit Deus ex Mosis Spiritu tollens quod aliis distribuit ignominiae notam qua dignus er at â— fligit minime dubium est quin diminutio notetur This is spoken very harshly and untruly by Calvin as learned Authors have shewed his Error herein So upon Deut. 17. 8. 9. 10. Where the Priests and Levites were appointed Judges in great matters between blood and blood between Plea and Plea and between stroke and stroke being matters of Controversie within thy gates Calvin doth so interpret as if the Priests and Levites were only to expound the Law to the Temporal Judges but not to sit as Judges upon the bench themselves with especial authority as the other Elders and Judges did Wherein he was much mistaken For the Priests and Levites were principal Judges in all matters and causes whatsoever not only Ecclesiastical but Temporal not only for explaining of the Law but executing the same The Learned Casaubon in his Exercitations upon Baronius 13. Sect. 5. shewed that the Priests and Levites were the principal judges in the genreal Council Hujus Conciliiea fuit institutio ut si fieri posset e solis Sacerdotibus Levitis constaret qui non erant e Tribu Iuda sed Levi itaque in Bibliis aliquando apud Iosephum appellatione sacerdotum intelligitur ipsum Synedrium Siâ— e numero sacerdotum aut Levitarum non reperirentur qui definitum Iudicum illorum numerum impleâ—ent tum demum aliis Iudaeis aditus in Synedrium patuit nulla Tribus habit a ratione Hoc Maimonides declarat c. Bancroft in his Survey cap. 25. doth fully shew the error of Calvin and Beza in dividing the Courts and doth accurately conâ—ute them to whom I refer And further of late the excellently learned Grotius hath also accurately cleer'd the point Quod quidam arbitrantur duos fuisse senatus summos Iudeorum alterum qui civilibus alterum qui Ecclesiasticis negotiis praeesset de eo quid â—obis videatur alibi erit dicendi Locus in Mal. 2. which he doth perform upon Mal. 5. very exactly Cum pingue haberent otium non tantum omnialegis sed medicinae aliarumque artium diligenter ediscebant ut Egyptii sacerdotes ideoque primis saeculis ex illis ut eruditioribus senatus 70. virûm legi maxime solebat Grotius in Deut. 17. and so in Mal. 5. Cum sacerdotes opimo fruentes otio omnibus sapienentiae partibus prae er caeteros operam darent aequum erat ex horum numero aliquam-multos allegi in ordinem illum cui jam suprema etiam judicia credita fuisse diximus quanquam neminem fuisse qui originis dignitate eum locum sibi posset vindicare scripsit Maâ—monides c. Florentibus Hebraeorum rebus fieri aliter non poterat quin in sacerdotum classe plurimi râ—perirentur digni eo loco His addebantur alii qui in aliiâ— tribubus doctrina sanctimonia eminebant Quamobrem Moses Deut. 19. 17. De falsi testimonii cognitione agens senatum hunc describens sacerdotes judices nominat alibi etiam de exploranda diligentia judicum inferiorum in cognoscendo homicida ipsi sacerdotes tanquam ejus senatus pars praecipua nominantur c. Hoc ipso in loco Deut. 17. 8 9 non distinguuntur caâ—sarum genera neque vero causae ullae nominantur quae proprie videri possent sacerdotales sed si quid controversi incidisset de homicidio de lite de vulnere jubenâ—â—â— adire sacerdotes c. neque vero alia fuerant judicia sacerdotis alia senatus id enim omnes Hebraeorum Magistri constanter negant And much more he addeth out of Iosephus and doth also accurately expound the Texts 2. Chron. 17. Concerning Iehosophats reformation and placing of Iudges in Ierusalem as also the Text in the prophet Ier. 26. where some priests do accuse the prophet and the Princes do absolve and free him So in his Book De imperio summarum potestatum cap. 11. Sect. 15. He doth accurately handle this Question Ubi explicantur Iudeorum tum minora judicia tum magnum ostenditur apud Iudaeos eosdem fuisse qui de sacris profanis jus dicebant quae sint negotia Dei quae Regis So Bertram a learned Lawyer De politia Iudaica cap. 9. So Sigonius de Repub. Hebr aeorum lib. 6. c. 7. So Scuetetus in his Exercitations lib. 1. cap. 54. So Schickardus de jure regio Hebraeorum c. 1. pag. 9. 10. So Selden in his Uxor Hebraica cap. 15. Quod vero à nonnullis iisque alioquin doctissimis obtenditur Presbyterium fuisse singulare quoddam forum apud Iudaeos quod de Religione rebus saeris solùm cog nosceret qualé apud nos dicitur Ecclesiasticum â— doctrina Talmudica atque ab ipsa veritate est longe alienissimum pro diversitate jurisdictionum amplitudinis idem ipsnm ubique in ea Republica seu Ecclesia forum de rebus sacris ac Religione judicabat quod de profanis seu quae non sacrae And since this Selden hath more fully proved it in his books De Synedriis Iudaeorum to which I refer and further the learned Dr. Hamond hath most accurately proved and illustrated it in his Annotations on the New Testament as on Luke 3. and Acts 4. and other places that there needs no further proof Selden in his Preface to the first Book De Synedriis pag. 9. terms it Duplex seu Bifurcatum in Christianismo regnum seu imperium Politicum seu Magistraticum ut appellitari amat Ecclesiasticum ab illo prorsus sic distinctum quasi Binos quis fingeret soles c. CHAP. III. Concerning the Union of the Courts of Iustice in the time of the Saxon Kings after they were converted to the Faith The Division of the Courts being brought in by William the Conquerour as appears by his Statute THe union of Courts continued from the beginning of the World for four thousand years as Selden affiâ—meth lib. 2. De Synedriis in the preface p. 2. How that course came to be changed will appear by what followeth here The distinction of Courts seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Can. Cum ad verum 96. Dist. About 200. years before the Conquest Which was imitated among us by William the Conquerour Whose Statute to that purpose is recited and illustrated by Spelman in his Glossary and Councils and by Selden in his History cap. 14. and in his notes upon Eadnez pag. 167. and also published by Lord Cook 4. Instit. cap. 52. But
Parliament assembled and by the authority of the same ordaineth establisheth and enacteth that from henceforth the same evection and making of the same Duke and all the Names of dignity to the said George or to Iohn Nevil befor henceforth void and of none effect c. And much more the Lord Cook addeth to the same purpose as also York the Herald pag. 223. The late Lord Brook who was slain at Lichfield when he was ready to batter the Cathedral Church in his book against Bishops speaking much against them and magnifying the Temporal Barons saith that though their Honours are derived from the King yet being once made Lord their Honour is vested in their blood and cannot be taken away but his Lordship was not learned in Law or Herauldry He might have taken notice what Lord Bacon saith in his Apopthegmes That blood is no better then the blood of a black Pudding that wants Fat and Suet Honour is vested in the lands Mannors and Revenues which when they are lost and gone farewell Honour and Title Edward Lord Cromwell Grandchild to him that spoyl'd the Church sold the head of his Barony Oukham in Rutland and wasting his whole estate left himself as little land in England as his Grandfather left to the Monasteries by the Feudal Law his Barony is lost The last Edward Lord Zouch who dyed 1. Caroli who was a very great Baron anciently sold the Head of his Barony Haringworth in Northampton-shire and all the Lands which he had insomuch that Henry Howard Earl of Northampton said He was a Baron sans terre Whereupon he bought again some other lands but having no Sons his Barony his extinct Henry Daubeny Earl of Bridgewater created 20. Iuly 30. H. 8. dyed without Issue Anno ... Edw. 6. and so his Name Family and Dignity extinct This Earl was reduced to that extream poverty that he had not a servant to wait on him in his last sicknesse nor means to buy Fire or Candles or to bury him but all was done for him in Charity of his Sister Cicely married to Iohn Bourchier the first of that name Earl of Bath Many more might be alleadged but these are enough to shew that when Lords have lost their Lands and Revenues then they are not fit men to fit and vote in Parliament and many there are who though noâ— wholly impoverished yet so decayed that they are not so fit as the Bishops to be present in Parliaments who if they might have enjoyed their ancient Lands and Mannors were indeed the most able and worthy to be Members in Parliament both in regard of their great estates and their Knowledge and Learning in all kinds far beyond the Temporal Lords Lastly Whereas Dr. Burgesse saith the Bishops are Barones Eleâ—mosynarii and would thence infer that they are but as Arbitrary Almsmen like the poor Knights of Windsor who may be abated or taken away at pleasure This is but a spightful inference upon the bare word Eleemosyna without the true sense of it For as the Learned Glossary sheweth Barones Eleemosynarii apud Stanfordum in jure nostro dicuntur Archiepiscopi Episcopi Abbates Priores qui praedia suae Ecclesia a Rege tenent per Baroniam Baronias etiam suas ex Eleemosyna Regum perhibentur accepisse licet ipsa praedia aliorum saepe munificentia consequuti fuerint And sometimes not only by the gift of other noble persons but also themselves did buy and purchase many Mannors and Lands conferring them on their Successours and being so bought they cannot in justice be taken away as if all had been given by the King and others as meer Alms. Lanfranck Arch-bishop of Canterbury bought and recovered 25. Mannors and left them to his Successors Harvey the first Bishop of Ely in the time of Hen. 7. bought and left many Mannors to his Successors and so likewise did many other Bishops enriching much their Bishopricks and leaving besides many testimonies of their piety by building Colledges and Hospitals And other good works to the benefit of all men They founded also almost all the Colledges in both Universities to their eternal honor so long as Learning shall flourish in this Kingdome CHAP. VI. Concerning the Legislative power and Votes of the Bishops in making Laws Concerning the Statute 11. H. 7. Whereby Empson and Dudley proceeded and what great Treasures they brought to the King Calvin and Beza at Geneva were Members of their Chief Council of State consisting of 60. and so many Bishops in England be Members in Parliament King David appointed Priests and Levites in all Courts of Iustice. The Clergy had many priviledges as Lord Cooke sheweth upon Magna Charta 2. Instit. pag. 2 3. Ambition and Covetousnesse of the Presbyterians the principal cause of all our Troubles BUt concerning the Legislative power and Votes of Bishops in making Laws to regulate the Kingdome and to preserve peace and justice among all sorts of men there is not to be forgotten an ancient Law of King Athelstan Concil pag. 402. c. 11. That worthy King in his Laws hath one De Officio Episcopi quid pertinet ad Officium ejus Episcopo jure pertinet omnem rectitudinem promovere Dei scilicet ac seculi imprimis debet omnem ordinatum Dei instruere quid ei jure sit agendum quid secularibus judicare debeat Debet enim sedulo pacem concordiam operari cum seculi judicâ—bus qui rectum velle diligunt in compellationum adlegationem docere ne quis alii perperam agat in jurejurando vel in â—rdalio Nec pati debet aliquam circumventionem injustae mensurae vel injusti ponderis sed convenit ut per Consilium Testimonium ejus omne legis scitum Burgi mensura omne pondus ponderis sit secundum ejus institutum valde rectum Ne quis proximum suum seducat pro quo decidat in peccatum Et semper debet Christianus providere contra â—mnia quae praedicta sunt ideo debet se magis de pluribus intromittere ut sciat quomodo grex agat quem ad Dei manum custodire suscept ne diabolus eum laniet nee malum aliquid super seminet c. Christianis omnibus necessarium est ut rectum diligant iniqua condemnent saltem sacris ordinibus evecti justum semper erigant prava deponant Hinc debent Episcopi cum secularibus judicibus interesse judiciis ne permittant si pessint ut illius culpa aliqua pravitatum germina pullulaverint Et sacerdotibus pertinet in sua diocaesi ut ad rectum sedulo quemcumque juvent nee patiantur si possint ut Christianus aliquis alii noceat non potens impotenti non summus infimo non praelatus subditis non dominus hominibus suis vel servis aut liberis molestus existat secundum Episcopi dictionem per suam mensuram convenit ut servi testamentales operentur super omnem
arise in those first ages most of which heresies were such as were fit to be beaten down by authority rather then by reason and argument they being so impious insolent and blasphemous so after his time when he had setled the Bishops authority yet there being two Courts where did arise many differences and debates between the Bishops and the secular Judges of that time touching cognisance of some Causes Iustinian the Emperor made a lâ—w like unto that Circumspecte agatis of our King Ed. 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novel is thus Si delictum sit Ecclesiasticum egens castigatione vel mulcta Ecclesiastica Deo amabiles Episcopi hoc discernant nihil commnnicantibus clarissimis provinciae Iudicibus Neque enim volumus talia negotia scire omnino Civiles Iudices cum oporteat talia Ecclesiastice examinari emendari secundum sacras divinas regulas quas etiam sequi nostrae non dedignantur leges And further for the greatness of the Bishops authority it will appear fully if we look upon the Lawes as they lye concatenaâ—ae in the same title where it is said of the Bishops Cum sint ordinarii Iudices And again Similes praefectis praetorio and further Ordinarie quoque procedant The linked Texts in that title of the Code as they stand cited do fully shew the greatness of the Bishops Coâ—â—â—â— and authority when they are compared and said to be Similes praefectis praetorio who were Illustres Iudices and so stiled in the law they being indeed the most supreme Judges in the whole Empire there being but three in that spacious Empire One in Asia Praefectus praetorio Orientis Another in Europe Praefectus praetorio Illyrici The third in Africa Praefectus praetorio legionibus militiae Africanae The Civil Magistrates were respectively Judges of the Causes which the Emperour had translated from the Empire to the Church which when the Emperour had done and made the Bishops the Judges in the Church as the praefecti praetorio were in the Empire before it appears hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their vicar-generals whom we now call Chancellors as a learned Civilian observes who are no upstarts in the world rising out of the Bishops Sloath as one though otherwise Learned and Eloquent mis-called them but had their original from the law it self Touching whom I will here say something out of the learned Civilians because commonly their place and original is much mistaken by the ignorantly zealous people who do now abound in the world and think nothing lawful in government unless their be express text of Scriture for it as if no calling government or subordination of officers in the Church were lawful but what is expressely and fully set down in the Scriptures and no power and authority left in the hands of Christian Kings and Magistrates to appoint Judges and Officers for Church-discipline as well as for Civil Judicature Therefore to return as the praefecti praetorio quia illustres erant antestabant caeteris dignitatibus ideo habebant vicarios suos in Civilibus causis audiendis terminandis So were the Bishops then and so are they now Illustres judices antestabant antestant caeteris dignitatibus in Ecclesia For the law parallels them in the Church with the Chief Judges in the Empire as well in this as in the rests of the Parts of their Honour wherewith the Emperour had honoured them and the Laws honour them at this day Iustinians Code hath sundry lawes some of his own some of the Emperours before him even from the dayes of Constantine the great which shew that Bishops in their Episcopal audience sate not without their Chancellors although their Chancellors sate often without the Bishops whose higher charge in Christs Church permitted not the Bishops presence in Court-Causes ordinarily And though not under the name and title of Chancellors nor alwayes vicar generals officials or Commissaries yet they had other titles but the same offices Ecclesiasticâ— or Episcoporum Ecdici as much as to say as Church Lawyers or Bishops Lawyers professed Civilians and Canonists of that age the very self same officers and office that the Bishops vicar-generals then were and now are who together with the Bishops then made and do now make but one and the same Tribunal and Consistory their Commissions they held from the Bishops but their Jurisdiction from the Law And the Cause why the Imperial power furnished the Bishops with these officers was the multitude and variety of Ecclesiastical Causes more in that age then now the decision whereof in their Consistories being left to the Bishops the Emperor doubted might have drawn them from prayers and divine exercises And a second reason was that the cause of the cognisance of their Courts were more likely to have thereby a more speedy ready and Judicious trial before Judges of the same learning which require a whole man then before Judges of another then an higher requiring as the Bishops pastoral office doth a whole man too And a third reason also may be added because the Clerks suites and quarrels should not be divulged and spread abroad amongst the secular sort which trenched many times upon the whole profession especially in capital matters wherein Princes anciently so much tendered the Clergy that if a Clerk had committed an offence worthy of death or open shame whereby he became perpetually infamous he was not first executed or put to open shame before he was degraded by the Bishop and his Clergy and so was executed and put to â—hame not as a Clerk but as a lay malefactor for the Honour and Dignity of Priesthood It were to be wished this Order were retained still that Clerks should not passe immediately when they fall into such excesses from the Altar to the Halter but hang or suffer other shame without their Priesthood which Order if it were retained still or might be restored would much honour the Church and no whit derogate from the jurisdiction of the Crown The Determination of a Question made by the right Reverend Iohn Davenant late Lord Bishop of Sarum QUEST 11 th Civil Iurisdiction is by right granted to Ecclesiastical persons IT is by the warrant of Christ himself that the Church doth claim and execute a Spiritual Jurisdiction in punishing the offences of her Children For it can admit an accusation against the inordinate courses of any Christian and hath power to chastise him being by sufficient witnesses convicted either by denying him the Sacraments or if he continue obstinate in his wickednesse by an utter exclusion of him from the fellowship and Communion of other Christians I know none so malignant or unskilful in Ecclesiastical affairs that will deny this authority which indeed goes not beyond excommunication to have been conferred upon Churchmen from the beginning by
trouble Lastly let us out of our adversaries own grants and confessions prove what themselves deny They grant the Clergy a jurisdiction whereby they can cite before their Courts Hereticks Drunkards Adulterers and such like infamous persons admit accusations against them hear and examine witnesses and give sentence of excommunication on those that are lawfully convicted If by vertue of spiritual jurisdiction from Christ received they can do these things why shall they not by the accession of secular jurisdiction by the King conferred imprison the same malefactors or by such like civil punishments restrain their base incontinencies This Act of correction is no less warrantable in its own nature then that of excommunication both being put in execution by just and legitimate authority niether do corporal punishments lesse conduce to the Reformation of delinquents and the Churches good then those meerly spiritual Therefore by the allowance of superiour authority it is no less expedient that Clergy-men should inflict one kind of chastisement rather then another In a word learned M. Calvin doth grant that what Controversies soever happened between Christians to avoid strife and division they were wont to referre them to their Bishops by their judgment to be decided And St. Austin tells us that he dayly spent some time in secular affairs either by his sentence determining and setling them or cutting them off by his interposition Furthermore he records that St. Paul employed Church-men in such troublesome matters If private Christians do lawfully commit their civil Controversies to the arbitrement of Bishops surely Christian Kings may to the same Bishops lawfully commit the judgment of the like Causes if at the request of private men it be nor unlawful for Church-men to intermedle with secular businesses it cannot be unlawful to do the same by the appointment of the King For as the matter stands he doth no less interest himself in state affaires who decides controversies as an Elect Arbitrator then he who decides the same as a Iudge ordained by the Prince Let us conclude that ambitiously to hunt after or with prejudice to the Function of Priesthood to exercise Civil Jurisdiction from the hand of a King and to administer the same to the better establishing of the peace and discipline of the Church is an Act lawful and praise-worthy most agreeable to the ancient practice of the Church and no wayes repugnant to the Divine Scriptures To this Determination of the learned Bishop Davenant there is nothing replied by Dr. Burgesse but in an insolent manner he terms him onely a speculative Divine as if such a famous professor in the university and a most learned Bishop for twenty years together who was highly reputed for learning and piety should be so scornfully neglected by one that never spent seven years in the university nor ever enjoyed any fellowship a place of continuance in any Colledge to gain more then common learning in a trivial way as appeared fully when he came back to the University to go out Doctor and would needs take upon him to answer the Divinity Act which he performed so contemptibly that he was hissed and scorned publickly by all the Auditors and accordingly censured by Doctor Prideaux who reprehended him sharply in publick for his ignorance and insuffiency and some Papists who are commonly present at such publick Acts among the multitude hearing him to be so destitute of Latine Logick and distinctions upon the state of his questions publickly were heard to say Alass poor black sheep what maketh thee here Whereof I was both an eye and ear witnesse But as is formerly affirmed if some principal men of the Clergy be not in places of Authority and Judicature and some be not Justices of the Peace in every Shire the ordinary Clergy will be trampled on by the vulgar people in most vile manner taxed and assessed unreasonably by Constables and Committee-men and all such officers as is well-known by many instances which might be alledged and are commonly known to say nothing of the insolency of Souldiers and Quarter-masters who will be sure when they come to any parish to set first upon the Ministers house and furnish him with company enough to consume all that he hath in barnes or buttery without any mercy or compassion which may be easily proved but that it is a thing notoriously known past denial so that the Clergy may complain with the Apostle that they are made the fisth of the world and are the off scouring of all things to this day And all this done by the Parliament-members and officers who pretended to advance religion to maintain and uphold Ministery as well as Magistracy But the Laws being taken away or suspended whereby Ministers should be preserved and maintained there is risen up such a swarm of Sectaries Anabaptists Quakers and a rascal rabble of others who deny the calling of ministers and are as ready to oppress them in as violent manner as those Rebels that did rise in the 5. Rich. 2. Wat Tyler Iack Straw Iack Shepherd Tom Millar Hob. Carter and such like fellows as Cowper relateth them in his Epitome of Chronicles and as Iohn Stow reporteth in the Confession of Iack Straw at his death They would have destroyed all Bishops Monks Canons and Parsons and would have dispatched them all Only begging Friers should have lived that might have sufficed for ministring the Sacraments in the whole Realm Poor begging Friers having no good Lands or Revenues were not the object of the peoples malice but all rich men Lords and Gentlemen especially Clergy men should have been made a prey And so or worse is the Case of the Clergy in these times All principal al learned Divines if they have any Estates are miserably cast out of their houses and livings Bishops Deanes and Doctors or others of any eminent note are shamefully persecuted Only poor Curats poor Lecturers poor New-lights poor Schoolmasters who are like the begging Friers are suffered to continue and yet the Anabaptists and Quakers and such like are ready to cashier them to pull down Churches Steeple-houses and Stone-houses as they call Churches in derision but as Solomon saith there is no new thing under the Sun from the beginning of the world to the end it is so that necessitous men theeves and beggars will seise upon the estates of rich men if they have once power in their hands and can but lay hold on them The Speech of Doctor WILLIAMS Lord Arch-bishop of York in defence of the Bishops Rights to Sit and Vote in Parliaments I Shall desire as much water or time of your Honorable Lordships as your Lordships can well afford in a Committee because all that I intend to speak in this business must be to your Lordships onely as Resolved for mine own part to make hereafter no Remonstrance at all to his most excellent Majesty for these several reasons 1. That I have had occasion of late to know that our Soveraign whom God bless and
having the name among the three mighties He was also Captain of the Guard to David and after the Death of Ioab he was made Lord General of the Host by King Solomon in Ioabs room 1. King 2. 35. And this is fully to be proved by excellent learned men As Sigonius Bertram Casaubon Moulin especially by the learned Hugo Grotius upon Mal. 5. 21. Where he doth accurately shew out of the Text Iosephus Philo and other Monuments of the Jews that there was no distinction of Courts the one Ecclesiastical the other Civil as Calvin and Beza and some others that follow them would have it but the Judges and Courts were united and the Priests and Levites the principal Judges and Officers in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. They being appointed to hear every cause between blood and blood between plea and plea and between Stroke and Stroke being matters of Controversie within thy Gates And as our Laws call them Pleas of the Crown and Common pleas or whatsoever else did arise among them pertaining to God and the King 1 Chron 26. 30. 32. for which purpose God did scatter them in every Tribe and turned the curse of Iacob into a singular blessing to be divided in Iacob and scattered in Israel Appointing 1700 to be on the West-side Iordan and 2700 on the East-side The ancient frame of our Kingdome for 500. years beforre the Conquest was thus disposed and governed As Spelman sheweth fully in his learned Glossary and Councels and happy had it been if things had continued so still But now the Law being otherwise setled and the Courts divided it is not safe or easie to make alteration Only without change of Law or Courts the Benches may continue as they are though some more Judges be added in most Courts and some Eclesiastical persons among them as in the Saxon times Comes praesidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut hnmanum diceret alterque alteri anxilio esset Consilio Praesertim Episcopus Comiti nam in hunc illi annimadvertere saepe licuit errantem cohibere Idem igitur utrique territorium jurisdictionis terminus Glossarium in Comes pag. 111. The Bishop and Earl of the County were joint Magistrates in every Shire and did assist each other in all Causes and Courts and so Mr. Selden in his History cap. 14. Sect. 1. By this means there was great union and harmony between all judges and officers whereas now there is great contention for jurisdiction and intollerable clashing in all Courts by Injunctions prohibitions Consultations and crosse orders to the great Vexation of the Clients and Subjects And by multiplying several Courts the number of Lawyers is greatly increased as Lord Cook sheweth 4. Instit. p. 76. Where he gives divers reasons of the increase of Suits in Law and in the same Book reckoneth up no lesse then 74. Courts of Law and justice of all sorts in the Kingdome besides the Ecclesiastical Courts Which are not many for the number and had little businesse to do when they were in greatest power For commonly two or three proctors were enough to dispatch the businesse of any Bishops Court without Advocates But in the Courts of Common Law there is a farâ— greater number of Lawyers in these times whereas there was but an 140. Lawyers and Attorneys appointed by that Martial and Legislative King Edw. 2. When he distinguished the Courts and appointed the number of Lawyers and Attorneys for the whole Kingdome whereof the Writ is referred unto by Lord Cook 4. Instit. pag. 76. But the writ it self is put down by Spelman in his Glossary pag. 44. 58. Sed hodie forte in uno Comitatu tot solummodo Atlornati reperiantur But the Division and Separation of the Ecclesiastical Courts from the Temporal seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Com. Cum ad verum 96. Distinct. about two hundred years before the Conquest which was imitated among us by William the Conquerour whose Statute for that purpose is recited and illustrated by Spelman in his Glossary and lately also published by Mr. Selden and Lord Cook 4. Instit. c. 52. So that as the Pope hath been the Authour of much evill in the World oftentimes so in this particular when he came to the height of his greatnesse having de facto the Supremacy in all Ecclesiastical matters he made the Clergy subject only to himself and his Deputies and Legates and such officers as he sent among us But at length Hen. 8. Contested with the Pope and recovered the Supremacy of his Crown though it cost much blood and opposition in his time But he having recovered it and it being approved by Parliament it is fully setled upon the King and vested in his Crown And as Lord Cook saith 4. Instit. pag. 331. His Majesty hath and Queen Elizabeth before him had as great and ample Supremacy and Iurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the Clause of annexation in the said Statute of 1 Eliz. had never been inserted Wherefore the Speech of Iohn Pym as in Rushworths Collections 4. Caroli That the Supremacy was given by parliament to the Crown and as he seemeth to understand it may be taken away by parliament is a dangerous opinion not to be endured Lord Cook saith 4. Instit. pag. 325. The Act 1. Eliz is an Act of Restitution not a gift meerly given which was not formerly due and belonging to the jurisdiction of the Crown If therefore the King hath his Supremacy vested in his Crown so firmly and is Custos ntriusque Tabulae by the Word of God as the Arch-bishop sheweth Then this Ecclesiastical Head must be allowed to have some Ecclesiastical Sences to be consulted withal excellently learned and principal persons of the Clergy And as he addeth truly If Cranmer the Arch-bishop had been thus dealt withal and suppressed in the minority of our young Iosias Ed. 6. What had become of the great work of our Reformation and also if Ridley Latimer Hooper and the rest of the protestant Bishops Martyrs afterwards had been set aside and neglected the Reformation could not have been effected Therefore unlesse the King have good choice of Ecclesiastical persons excellently Learned Bishops both in the ancient Councels Fathers Histories and Controversies and in Canon and Civil Laws requisite to determine of great difficulties that will continually happen in the Church whereof the Conusance belongeth to the Spiritualty as Lord Cook sheweth out of the Statute 25. H. 8. cap. 21. and commendeth them for their Knowledge Integrity and Sufficiency and if so then much more at this day I saith Coke When all kind of Learning is eminently advanced to an higher