perills to take notice of the premises and strictly to observe the same Dated 6. of March 1631. Friar Thomas Flemming Archbishop of Dublin THE EXCOMMVNICATION PVBLISHED BY THE L. ARCHBISHOP OF DVBLIN Thomas Flemming alià s Barnwell Friar of the Order of S. Francis against the Inhabitants of the Diocesse of Dublin for hearing the Masses of Peter Caddell D r of Divinity and Paul Harris Priests is proved not onely injust but of no validity and consequently binding to no obedience FIrst then gentle Reader give me leave to lay downe these few Principles of the Canon Law as the grounds of my following Discourse I. The first Principle is That the Censure of Excommunication grounded upon an intollerable error is both injust and invalide and so obligeing to no obedience neither in for o fori or in foro poli as much to say neither in Law nor Conscience Cap. Per tuas de sentent excom Glossa ad cap. Licet de senten Excom in Sexto Sâ—tus in 4. sentent distinct 22. q. 1. art 3. Câ—varruvius ad Cap. Alma mater part 1. § 8. num 7. And it is the common Tenent of all Doctors II. The second Principle is That no Excommunication just valid can be fulminated but for a mortall sinne the same manifested afore-hand forbidden under paine of Excommunication so alwayes accompanyed with contumacy Sot in 4. distinct 22. q. 1. art 2. conclus 2. 4. Vgolinus tab 1. cap. 17. § 7. num 6. 8. cap. 27. Cap. Nemo Epis 11. q. 3. Concil Trident. sess 25. de Reformatione cap. 3. And it is the common Tenent of all Doctors III. The third ground is That Priests of the Hierarchy or Cleargy are bound to no further obedience unto their Bishop or Ordinary then Canonicall That is such as the Lawes of holy Church prescribe and which they promise in their Consecration vid. Ep. IV. The fourth is That in all Legall and Canonicall prosequution of cause or crime the Defendant is to be called unto his answer convicted of what he is accused before he be sentenced Cap. Cum Paulis 191. Vantius de Nullitâ—tiâ—us defectn proâ—essus num 13. 14. 23. tom 4. Clement pastoralis dere judicanda Alexauder Concilio 123. L. si non defendantur ff De poenitentiâ 1. § finali ff in lege finali § Illud C. de Tempore in cap. 2. de litis contestatione lib. 6. And it hath the consent of all Doctors V. The fifth ground is That every man is to be taken and to be held for a good a legall and an upright man till the contrary be proved against him Regnla Iuris 8. These five Principles of the Canon Law I place as so many lampes or lanthernes in the entry of my following Discourse to enlighten the Reader with more ease and facility to passe thorough the same In which Treatise or Discourse I intend by Gods assistance to proove That the aforesaid Censure of Thomas Flemming alià s Barnwell L. Archbishop of Dublin Friar of the Order of S. Francis is of the worst ranke of Excommunications of so defective a nature as besides the Injustice thereof it laboureth of a meere Nullity or Invalidity and consequently can produce no other effect then neglect or contempt CAP. I. The first Argument against the Excommunication MY first Reason or Argument by which it is manifest that the aforesaid Excommunication is not onely injust but invalid is for that it is grounded upon an intollerable error But how say you is that proved Mary as thus A sentence published without any cause or reason containeth an intollerable error So Sayrâ—â— lib. 1. cap. 16 num 32. Suarez dist 4. sect 7. num 31. Maâ—uale pralatorum art 13. Conclus 1. Alterius lib. 3. disput â— cap. 1. Bonacina tom 1. de Censuris disput 1. q. 1. puncto 10. num 9. Reginaldus lib. 9 num 106. and so commonly But such is the aforesaid Censure published without cause or reason as shall be proved Ergo it containes an intollerable error Now for the Minor of this Syllogisme namely That the precedent Censure was published without cause or reason I thus declare The cause of the Censure layde downe as appeareth by the Tenor thereof is the insolencie and obstinate disobedience of the two aforenamed Priests that without hope of amendment to the great disedification of his flock To which it is answered by the aforesaid venerable Priests in this their Apology or defence That this cause was never proved against them therefore is no cause at all by that rule of the law Causa non probam non est causa A cause not proved is no cause 24. q. 3. de Illicita and is manifest by the light of reason For they alledge that to this day they have never bin accused much lesse convicted of any such disobedience or obstinacy Nay they say further That as yet they never were cited before their Ordinary to answer any matter of disobedience in all their lives whatsoever Now then forsomuuch as the Canon it selfe tells us Quod publicum judicium est institutum ut innocentia protegatur culpa puniatur 2. q. 1. That publique Iudgments are therefore ordained that Innocencie may be protected faults punishâ—d And our wise Law-givers observing that this end and scope of the law could not otherwise be attained but by citing calling to their answer the parties supposed to be delinquâ—nt admittiâ—g them to their defence Therefore was it ordained by the Canons lawes of holy Church that even in summary most compendious pâ—oceedings in which all solemnity of law may be pretermitted yet no Bishop or Prelate should presume to sentence any of their subjects These or either of these two maine pillars of all legall juridical proceeding being neglected namely Citation Conviction as is above proved in the fourth Principle And that in omission of both or either of these two essentiall parts of all lawfull processe all sentence publication of sentence following is to be held ipso fact voyde so Invalid in law as no appellation from such sentence shall be necessary to any other court or superiour For saith the Canon Quae contra legem facta â—unt pro infectis haberi debent 25 q. 2. Imperiali The things that are done contrary to law are to be accounted as not done at all Now then forsomuch as both these namely Citation Conviction have bâ—n omitted by their Ordinary Thomas Flemming alià s Barnwell L. Archb of Dublin and Friar of the Order of S. Francis Tho setwo reverend Priests doe alledge that the sentence of Excommunication following fulminated against the Inhabitants of this Diocesse for hearing their Masses is utterly voyde For which so great a wrong both to Priest People satisfactioâ— of honour and dammages in all law conscience is due they being in possession of a good name of which they are not to be deprived till the contrary
thereunto so I will undertake by Gods assistance to shew and upon good grounds that in all conscience it ought to be disobeyed And that whosoever yeeldeth obedience unto the same if he be not excused by invincible ignorance doth not only sin mortally but also continues in sin so long as in obedience thereunto he refuseth to heare the Masses of the aforesaid Priests CAP. VII Wherein it is proved That none in Conscience may obey the aforesaid Excommunication THus then I argue Defamation or the taking away of a mans good name is a mortall sin So S. Thomas 2. 2. q 73. 1. all Divines Yea so much is that defamation or detraction greater more grievous by how much it is more materiall the partyres against whom more honorable And it is to be understood That defamation or detraction is not only verball but also mentall and reall that is not only in word but in thought also and in fact And because every thing is made more familiar by examples I put the case that my self as also the whole neighbourhood hath understood of some scandalous sinne of one of our old friends and familiar acquaintance whom wee held albeit a poore yet an honest a very pious man wherupon we with-draw our good opinions from him our wonted conversation our familiarity and such benefites as from time to time we were wonted to bestow upon him and still would have continued if we had not heard such evils of him well it appeares unto us not long after that the party was wronged and free from all such vice wickednesse as he was charged withall and so as in conscience we are assured of his innocencie yet notwithstanding we beare ourselves towards him as formerly we did when we believed those evils of him to his great discomfort to his discountenance in the world and in fyne to his great shame infamy I say in this case we all sinne mortally and the blacke sinne of Detraction if not in thought and in word yet which is as bad as the rest really indeed So I say these two R. Priests so often mentioned were charged by their Ordinary with disobedience with continuall insolency c. All this is manifested to be a malicious slander notwithstanding are the people forbidden to be present at their Masses the same under paine of Excommunication One Fryar sayes the Censure ought to be obeyed Another sayes at least it is the safest way I say they both erre lead into errour For the safest way is not to defame my brother or to obscure his good name nor yet to joyne and concurre with such as do detract with-draw from his just honour and that especially in persons of so eminent a ranke in the Church as are anointed Priests by which meanes their ministery is lesse respected and themselves disinabled to walke in that vocation to which they are called And first the Bishop who gave so impious a sentence next the Friar who gadding from house to house seekes to perswade the same are guilty of most horride sin and as the Apostle calls it blasphemy And as well the one as the other obliged to satisfaction unto the Innocent so wronged as also unto the Church of God In the meane time let both Priest people comfort themselves in that sweet blessing pronounced by the month of our Saviour Mat. 5. Beati est is cùm maledixerint vobis c. Blessed are you when men shall revile you shall persecute you shall speake all evill of you lying for my sake Be glad rejoyce for great is your reward in heaven for so did they persecute the Prophets who were before you And forsomuch as it is the counsell of our sweet Saviour to love our enemyes to doe good to them that hate us to pray for them that persecute us It wil be a worke of mercy not I trust misbecomming me to give a parcell of good counsell advice unto my Prelat if with the Prophet Nathan by setting his fault before his face I convert him into a penitent David he to the spirituall comfort of his soule shall be reclaymed and I to my great consolation reape the fruit of my labours O then say I if the Archbishop of Dublin would but consider with himselfe set before his eyes the practise of the ancient Prelats of Gods Church with what leaden pases they descended unto censures never making use thereof but in remedilesse occasions where no admonition no exhortation no patience no longanimity would prevayle As if they had said with the Poët Cuncta prius tentanda sed immedicabile vulnuâ— Ense recidendum ne pars sincera trahatur All first attempt if nought prevayle its best Cut off that part which may infect the rest All courses are first to be taken with the myst icallmembers of Christs body with the children of the Church But that part I confesse which admits no cure must be separated from his fellowes The ancient Bishops did never fulminate their censures for triviall and light occasions and much lesse for causes not manifest and well proved Aug. in sermone de Quadragesima Nos a communione quenquam prohibere non possumus nifi auâ— sponte confessum aut in aliquâ— sive saeculari sive Ecclesiastico judicio nominatum atque convictum We can excommunicate no man but him who either of his owne accord hath confessed or hath beene named and convicted in some saecular or Ecclesiasticall Iudgment Concâ—lium Meldense c. 56. Nemo Episcoporum quemlibet sine centa manifesta peccatcausa communione privet ecclesiastica Let no Bishop without a certaine and a manifest cause of a sinne deprive any of Ecclesiasticall communion Concilium Aurolianense 4. cap. 2. Wormaciense cap. 13. Nullus sacerdotum quenquam rectâ— fidei hominem pro parvis levibus causis à Communione suspendat preter eas culpas pro quibus antiqui Patres arceri ab Ecclesia jusserunâ— contemnentes Let no Priest excommunicate any for small or light causes besides those faults for which the ancient Fathers have commaunded the contemners to bee forbidden the Church Againe S. Ang. serm 16. de verbis Domini Câ—pisti habere fratrem tuum tanquam publicanam ligas illum in terra sed ut justâ— alliges vide Nam injustâ— vincula disrumpit justitia Thou hast begun to account thy brother as a publican thou binds him on earth But take heed thou bind him justly For Iustice doth dissolve unjust bonds Alas then shall we thinke that this glorious S t sometime Bishop of Hippo in Affrick S. Augustin brought with him his censures his sentences in his pocket as Thâ— Flemming alià s Barnwell Archbishop of Dublin useth then to send for a Priest against whom he desireth to have a cause And when he findes his opportunity drawes out his sentence of suspension from his pocket as he did against that R. Priest Fa. Patricke Cahil suspending him from all
Chauncellour of Paris S. Richard of Dundalke Primat commonly called â—â—machanus for that he was Archbishop of Armagh in his Deâ—ensorium Curatorum Thomas Walfingham Monke of S. Albons in his History of the Kings of England Such as in our dayes have not spared to note their open faults and manifest corruptions some in one kind some in another are Card. Bellarm. in his Gemitus Columbae Philippus Rovenius Archbishop of Philippi in his Treatise de Missionibus Iohn Petrus Camus Bishop of Bellay in his Dialogue betwixt Nicephorus Tristan Camillus Caesar Censor of the bookes published in Rome in his defence of the Archb. of Philippi Et ego Paulus Veridicus in hoc stadio novissâ—mus sudavi CAP. II. The doctrine of our Archbishop and Friars refuted who maintaine That Civill actions against Clergy-men are to be determined by the Bishop of the Diocesse TRue it is that regularly speaking the Canon lawes of the Church require that all causes as well Ecclesiasticall Criminall as Civill 〈◊〉 determinable by the Ordinary whensoever the Defendant is a man of the Clergy Concil Chalcedon can 9. Concil Agathense can 32. Concil Carthag 3. can 9. Tolletan 3. can 13. But to this I answer That as many other Canons lawes were never received in other parts of the Church no more was this at least for that last part of Civill causes in England or Ireland since the first conversion of the Natious heere by S. Patricke there by S. Gregory Neither let any thinke it strange that a generall canon law of the Church in some parts of the Church be received in others not Forsomuch as the Canon it self tels us that a Law may loose his strength and force of binding three manner of wayes First where the same was never approved or received Because saith the Law Leges instituuntur cùm promulgantur confirmantur dum approbantur 4. dist in istis â— prox Lawes are then ordayned when they are published but confirmed when they are approved Secondly if by a later law the former be disannulled e. 1. de Const in 6. So S. Aug. posterior canon corrigit priorem The later Canon corrects the former Lastly if by a contrary custome which is reasonable it be abrogated Locorum consuetudines ubi rationabiles sunt juri scripto derogare possunt cap. Dilecti 4. de arbitris c. 2. Ext. de Consâ—otâ—dinibus The customes of places being reasonable may derogate from the law written Now then I say That causes meerely Civill as Debts Inheritances Pawnes Morgages Leases Rents Annuities Pensions Purchases Sales and the like so often as Priests and Clergy-men were to be Defendants in all times as well under the government of the Saxon as Norman Kings were determinable by the Common-law never in any Ecclesiasticall Court at all So as it seemes unto me that law of the Church was either never received which in these Civill actions drawes the plea unto the Court of the Ordinary which I rather believe Or if it were at any time in observance by custome beyond all memory it was abrogated Neither need we so much to marvaile heereat since it is the common opinion of Divines that the exemption of Clergy-men as well in respect of their persons as their goods from saecular tribunalls was at the first introduced by humane not divine law So S. Greg. lib. 11. epist 54. doth no otherwise prove that a Priest ought not to be impleaded before a temporall Iudge but because Iustinian the Emperour had so ordained â— Read Card. Bellar. tom 1. Controversiarum printed at Leons in France 1587. lib. de Clericis cap. 28. But for the further clearing of this point Forsomuch as I am in the Negative our Archb. with his Friars in the Affirmative If they will maintaine that the law above cited in the beginning of this Chap. was ever in viridi observantia in due practise within these Kingdomes of England Ireland I say it is their parts by examples of Cases pleaded of Iudgments Sentences in such such Ecclesiasticall Courts of Bishops or their Vicar Generalls or their Chancellours to shew out of some auncient Records of the afore-named Courts Tribunals what may make for the confirmation of their cause which I assure my self they shall never be able to doe no not so much as to afford us one onely president though nothing be more common in the Common-law then Bishops Abbots Priests c. convented in the temporall Courts in Civill causes even in the best most Catholick times no lesse then at this day Hence are those Writs of temporall Courts unto the Diocaesan Bishops venire facies Clericum as also the Writs of Prohibition unto Ecclesiasticall Iudges as ancient as our common-lawit self which like unto Melchisedeck knowes neither father nor mother Why then doth our Archbishop Thomas Flemming alià s Barnwell together with his Friars noyse it up and downe both Citty Countrey That A. B. Priest is excommunicated â— jure for calling C. D. Priest into the Court of the Kings Bench for detayning with-holding certaine of his Bookes from him most injuriously as was determined lately by the Lord Chief Iustice especially the aforesaid Priest A B. first having made his complaint unto his Ordinary the aforesaid Archbish could not be heard Shall we say That our Archbishop and Friars are either more wise more learned vertuous then the Bishops Pastours Priests the whole Clergy for so many hundred yeeres past so many Kings Iudges Iustices in whose Tribunals that course hath ever beene held O no I cannot bee of that minde but that these were as well seene in all Lawes divine humane as obedient children of the Church and as respective of the Censures thereof as we their posterity be To conclude then this point I confidently avouch and will maintaine against these our Innovatours who labour to infringe the auncient Lawes immemorable customes hitherto from our very cradle of Christianity received allowed and practised both by the Church and Common-wealth in these his Majesties Kingdomes That they declare themselves by such their audacious attempts neither to be good members of the Church nor yet good subjects unto his Majesty CAP. III. How the Archbishop Tho. Flemming alià s Barnweâ—l Fryaâ— of the Order of S. Francis usurpet is a power never before heard of in this Kingdome to wit at his pleasure to banish the Kings subjects not onely out of his Diocesse but out of his Province IT is said That Exilium est mors civilis Banishment is a civill death And therefore in all reason not to be inflicted but by lawfull authority and for very grievous offences And first it is confessed by all Divines that Episcopall power in punishments is confined to the three Censures of Excommunication Suspension Interdict according to that of the Apostle Nam arma militiae nostra non carâ—alia sunt c. 2. Cor. 10. For the weapons of our warfare are not carnall
platforme of Iustice Iudgment Descendam videbo utram clamorem qui venit ad me opere compleverint an non est ita ut sâ—â—am Genes 18. I will goe downe saith Almighty God and I will see whether they have done according to the cry that is come unto me or whether it be not so that I may know So our Saviour in the processe of the adulterous woman Mulier Vbi sunt qui te accusabant Iohn 8. Woman where be thine accusers So hath he foretold us what shall be the forme processe of the last Iudgment at what time the sheepe shall be separated from the goates Math. 25. And thus have you seene some few examples out of Scripture of Iustice exercited in Iudgment by God himselfe Now as touching humane Iudgments who can make question but as Moses made the Tabernacle according unto that patterne which was shewed unto him by God himselfe in the mountaine Exod. 25. So ought all humane Iudgments to be squared according to the divine Of many to rehearse some few examples Such was the judgment of Salomon in the cause of the two Harlots about the quick the dead childe III. Reg. 3. Such was the judgment of Daniel in the case of chast Susanna Dan. 7. Such was the judgment of S. Peter in the matter of Ananias and Saphira Act. 5. And our blessed Saviour Redeemer in that his Arraignment where Injustice most of all did triumph in the seat of Iustice yet was admitted unto his answer saw his accusers heard his forged crimes urged by his malicious enemies enforced against him by two false witnesses last of all received his sentence pronounced by the mouth of the unjust Iudge Pontius Pilate Math. 27. But these two venerable Priests 〈◊〉 I confesse not in a matter which concernes their lives yet in a case which some will say is more to be esteemed then life it selfe to wit their honour and good name in the world were condemned not cited to Iudgment absent and 〈◊〉 at what time it pleased my L. Archbishop and his Fryars to sit upon the Bench. And that which in all Iudgments by the Law of Nature ought to be the last the perclose of the whole processe was here the first namely sentence For neither themselves or any in the place where they live did so much as once suâ—pect any proceeding in any cause with them or against them till sentence was proclaimed and that as publickely as at the high Crosse of Dublin and themselves condemned of Disobedience but how As I have said in termes of universality Of a Disobedience wanting his existence or being of a particular act or fact Of a disobedience without father or mother naked of all circumstances as time when place where person against whom A singular judgment I confesse and not much unlike unto that which they say in some barbarous Countreyes is exercised The man first hanged and then his cause examined O Nicodemus Nicodemuâ— Thou a Iew couldst say Numquid lex nostra judicat hominem c. Iohn 7. Doth our law condemne a man before he befirst heard and know what he hath done But had Nicodemus lived in these dayes among Christians he would sometimes have seen wrong injury and oppression to have sit in the seat of Iudgment I will then conclude this point with that saying of Festus unto King Agrippa in the behalfe of that great Apostle S. Paul when he was to be sent prisoner unto Câ—sar Sine ratione mihi videtur mittere vinctum causas ejus non significare Act. 25. It seemes unto me a thing unreasonable to send a man bound and not to signifie his cause And is it not thinke you a farre more unreasonable thing to thrust the people into the spirituall bondes and fetters of Excommunication and not to signifie the cause thereof And I wonder that our great Masters in Israel and you onely great Couucellours of warre against the poore Clergy my Lord I meane our Friars who professe so great Schollership would not advise your Hon who happily by reason of your other imployments cannot so well attend unto the study of the Canons what punishment that Bishop incurres who excommunicates before the cause thereof be proved See then for this the Councell of Paris with Gratian 24. q. 3. De Illicita And I will for the ease of my Reader set downe the words De illicita excommunicatione lex Iustiniani Imperatoris Catholici c. As touching unlawfull Excommunications the law of Iustinian the Catholicke Emperour which law the Catholicke Church doth approve and observe in his 123. Constitution cap. 351. hath decreed that no Bishop or Prelate excommunicate any person before the cause bee proved for which the Canons of the Church command this to be done and for his unjust attempt he shall so long abstaine from the sacred Communion as shall seeme good unto his Superiour So that Councell And it appeares by the Canon that such Prelates incurve suspension See Extâ—â—de sentent Excom Sacro So S. Gregory the great absolved the Bishop Magnus unjustly excommunicated by Laurence Archbishop of Millan See S. Gregory lib. 2. Epist 26. And the same Pope Gregory did punish Iohn a Bishop for inflicting of unjust Excommunications See for this the place above cited de illicita Excom And let them consider of this who teach that our Bishops cannot erre in their censures That they must be obeyed in right and wrong c. But I shall have occasion to speake of that point hereafter Forsomuch then as you see the Law tells us that no Excommunication can either be inflicted or incurred before the cause thereof be proved Let me humbly intereat your Hon my very good Lord for I suppose that you are neither too old to learne nor my selfe too yong to teach Nor doe I doubt albeit I be inferiour to you in place and dignity in Gods Church that it will either misbecome my profession as being a Priest nor my white haires as now being Paulus senex even Paul an old man to preach unto you That as well for the security of your owne conscience towardes God as to avoyde the scandall and obloquy of the world as also punishment from the higher powers That hereafter you will either make the cause of your Censures as well knowne and approved unto the world as you doe your punishments or else the punishments as private unto your selfe as the causes thereof And so hoping your Hon. will take the premisses into your consideration I will descend unto the next point which shal be to satisfie some doubts to answer to certaine objections which may be made in the behalfe of the Ordinary against my two former Arguments enforcing the Injustice and Invalidity of the Archbishops censure CAP. III. Certaine Objections in behalfe of the Archb. propounded and answered FIrst then it may be said in defence and excuse of the Ordinary That the times are such as our Prelats in
this kingdome cannot observe any legall or canonicall processe or course of Iudgement with their subjects and therefore are constrayned to proceed as they may And that albeit they neither call the Defendant unto his answere nor admit of any proofe of cause by witnesse against them they are to be borne withall Necessitas non habet legem Necessity knowes no law c. To which first I answere That if the Catholicke Prelats either have way by permission of the state or take unto themselves so much boldnesse as to publish their sentences of Excommunication in their Chappels and Oratories after Masse as well by such Parish Priests as are placed in the Cittyes and suburbes as also by the Friars of so many Orders Than say I How can they be excused in the pretermission of ilegall proceeding in that former part of Iustice going before sentence Namely calling the parties unto their answer examination of their causes admitting of proofe pro contra For so much as all this may be performed with much more privacy then the publication of sentence can be The Cano is of holy Church requiring no greater a number even in their most publicke and solemne proceedings in court then these 4. sorts of persons 1. The Iudge 2. The Plaintiffe 3. The Defendant and 4 ly the Witnesses all which neede not to be aboâ—e five or sixe persons at the most That Prelate then who can be so bold as to command his sentence of Excommunication to be published in the hearing of so many hundreds yea of thousands as my Lord Archbishop Thomas Flemming alias Barnwell hathdone yea and from time to time 1. published the same sentence lest it should grow stale and out of request How can he in reason pretend any feare of persecution in granting a legall course of proceeding in which the presence of so few as hath beene said is necessary And therefore to doe the one and to omit the other is but to sleight Iustice and to oppresse the Innocent And so much for the first answer My second answer is That in case the times be such the persecution so great as that those essentiall parts of all legall proceeding must of necessity be pretermitted I meane Convention of the parties Conviction by due proofe I say then with that common Maxime of the law Better an Inconvenience then a Mischiefe in such case all sentence of punishment publication and execution doth likewise cease and the guilty is rather to passe unpunished in this world then the very systema of all Tribunalls to be ruinated Iustice deposed from her Throne for then it seemes to be a case of a common calamity an inevitable necessity putting silence unto all lawes better the Nocent be spared then the Innocent punished But see note gentle Reader what use of the times what an excellent advantage the Ordinary makes unto himself to compasse his own ends I say by fishing in these troubled waters For whereas in France Spaine Italy and those Countreyes where the spirituall sword hath his free stroke in all Tribunalls supported maintained so often as is necessary with the ayde assistance of the secular arme yet all forme of due Iustice is punctually observed Id enim possumus quod justè possumus for that only can we doe saith the Law which we may justly doe But here in this Diocese all must be presumed for the Ordinary because we live in a mixt people neere unto the State Magistrate of an other profession in Religion from us no juridicall proceeding must be held necessary but that our Ecclesiasticall Iudge may lay about him at his pleasure in his censures punishments of his subjects without calling the parties before him to their answer without examination of their cause without conviction c. So as what an Ordinary could not do where the Church is established in his full strength and vigour against the poorest Priest of his Diocese here under pretence of a persecution and obstacle of a free course of Iustice he shall most easily effect I say under the name cloake of persecution more freely himself to persecute as at this present for some yeares past the Clergy of this Diocesse hath both seene felt having endured a more bitter persecution from this their Bishop his Friars then from the temporall Magistrate though divided from them in matter of Religion Adde hereunto a second advantage also that this Archbishop of Dublin makes of these times by a seeming and a pleasing correspondency which he keepes as he imagins himselfe with the State For he being a Friar seeking by all meanes to suppresse the Clergy and to bring all into the hands of the Regulars I meane the Monks Friars as well Franciscans Capuchins Dominicans Augustines Carmelits Iesuits For scarce are there so many Priests of the Clergy left in all this Citty as there be Orders of Regulars therein at this day And knowing that they of a contrary profession can well endure that Priests either in their persons or in their maintenance lively hood should be straitned suppressed And knowing also that it will not discontent the Protestane Magistrate to have the people forbidden to heare the Masses of Priests He upon these presumptions supported by the Counceâ—l of his Fryars who are of more strength in this Citty then men would imagine is animated to pursue such designes as of late he hath undertaken knowing that the lower the ballance of the Clergy descends the higher are the Fryars advanced by driving of the people from the Clergy the more of necessity must they wild they depend on the Friars But this wisedome doubtlesse is not spirituall but carnall not from above but earthly savouring not of the Holy Ghost but of ambition of temporal means and of the belly And so being a Councell not of God will come to nothing though for a time by never so strong a faction supported A second defence of the Archbishops proceedings is this which by our Friars is much put on foot especially among the common people That the Bishop is to be obeyed in all things yea in right wrong as some teach And shall the foot judge the head the subject the Magistrat the sheep the Prelate c. To the first part of this popular argument so much insisted upon I answer that if it be spoken merrily it may passe for a jest but if seriously it is flat heresie namely that 〈◊〉 Bishop in right and wrong is to be obeyed For the second part which thorough the perswasion of the Friars is in every old wifes mouth the second word of every Artisan Tradesman That the sheep are not to examine or question the sentence of their Preâ—ate the subject of the Magistrate I answer that albeit indeed the Inferiour can not reverse or correct the judgment of his Superiour much lesse may he punish him for the same because
be proved against them according to that rule of the law which I placed in the beginning for my fift Principle is also the very law of God Nature That every one is to be held a good a legall man till he be convicted of the contrary And so much for my first Argument or Reason manifesting the Injustice and Nullity of the aforesaid Excommunication CAP. II. The second Argument against the Exâ—â—mmunication MY second Reason manifesting the Nullity Invalidity of the aâ—â—â—aid Excommunication is That all Censures of the Ecclesiasticall Iudge or Prelate are not onely to be expressed in writing 2. q. 2 Iuprimis but also to containe the cause of such censure Concil Lug. â—ap 1. â—od in 6. which expression of cause is not onely to be observed in denunciation of Excomunications already incurred but also to be incurred in case the cause be not otherwise notoriously knowne For example The Archbishop of Millan excommunicates all such Officers Wayters at the city gatâ—s as alsâ— all citizens who shal admit into their houses strangers who bring not with them literas sanitatis letters of health This Excommuâ—icaâ—ion in time of pestilence mortality is just valid although it expresse no cause For why the cause is apparant the preservation of the Citty from infection in time of pestilence Yet say I in case there were no danger of infection for that there is no fame or report of any â—iagues abroad it were no valid sentence for want of intimation and expression of a cause And this happens so often as â—uch things are prâ—hibited under censures which of themselves are not unlawfull but by some accident or circumstance And in this all agree Now the afore-named Priests doe alledge in this their Apology That there is no cause at all layde downe in the sentence of the aforesaid Excommunication nor yet otherwise manifest for which want defect they doubt not to avouch it Invalid But it will be said unto the Minor of this Syllogisme That there is a cause expressed nominated yea and very much insisted upon in the Censure to wiâ— obstinate disobedience continuall insolencie and that without hope of amendment to the great scandall and disaedification of many Catholiques c. To which I answere That Disobedience is an universall cause hath many branches spreading it self farre wide thorough the whole life of man For example there is disobedience unto God and that in as great variety as there be sins offences against the first second Table There is disobedience unto the lawes of holy Church There is disobedience unto the lawes edicts of Princes to Prelates to inferiour Magistrates to Parents to Tutors to Masters of families to Pedagogues to all lawfull Superiours that in an Ocean of matter circumstances Now then forsomuch as neither vice nor vertue can be exercised but in their proper particular individuall 〈◊〉 No act of the Priests disobedience being heere mâ—ntioned no cause of the Excommunication is expressed no cause no censure For it is a saying as true as common That qui ambulat in universalibus intendit decipere He that walketh in universalities and generalities desires to deceive You know in your Civill Temporall Courts If a man be to be punished either corporally or by the purse his particular fault is set before his eyes yea and made manifest to so many as please to take knowledge thereof Is Titius an offender Is he a wicked man This is not sufficient to doome him to punishment And why so because there bee many kindes of offences many sorts of wickednesse Is Titius a theefe hath stolne Neither is that sufficient to cause his punishment And why because there be many sorts of stealths theeveries But hath Titius stolne a piece of plate of so mauy ounces an horse or a cow of such a valew from such a man such a time in such a manner O when Titius is brought unto his tryall in open Court is convicted of his particular act crime either by his owne confession or proofe of witnesse then is Titius subject to the sentence and to the execution thereof Even so say I disobedience is a vice in universali therfore as not committable so not punishable but in his particular Act. For they that know any thing know this that sinnes cannot be committed neither in Genere nor in Specie but in Individuo per Iudividuum But heere in the censure of the Archbishop it is neither declared against whom or in what matter this disobedience was or of what nature or colout it is The punishment is declared to be Excommunication but the cause of it hangs in the cloudes of universality and whether it will prove hayle raine or snow no man knowes but by divination Now let any indifferent man judge whether it be not a most illegall an exorbitant course of proceeding for a man to know his punishment not his offence to feele the one before he be convicted of the other And such is the case of these R. Priests who from time to time have demanded urged required with all duty due respect of their Archbishop as also of his Councell of Friars What this their disobedience was against whom it was committed in what matter it consisted of what nature it was of And nothing answered but sic volo fit jubeo or as sometimes it pleaseth him to say That he doth these things for causes and reasons onely knowne unto himselfe But if it were lawfull for Abraham Moses Iob to reason with God Almighty let me also with due respect aske of you my L. Archbishop whether this be not to open a gap to set wide the sluces of a full inundation to all injustice and impiety I say my Lord to punish your subjects for causes reasons only knowne unto your selfe For in so doing you seeme to erect a new tribunall to bring in such a forme of judgment among us as the world hath not yet taken knowledge of contrary to all lawes divine humane of God and man For first we reade in Genesis 3. when Almighty God was to cenâ—ure our first Parents for their transgression he was not contented with his owne knowledge but he cited them in person to appeare before him saying Adam Vbi as Adam Where art thou charging them with their particular disobedience in eating the forbidden fruit contented to heare what they could alledge in their owne defence before he descended to sentence yea as a grave Author writing upon that place saith Had not the devil bin sentenced damned before that time he happily then had bin admitted unto his defence and purgation The like did God in the parricide of Cain saying Vbi est Abel frater tuus Genes 4. Where is thy brother Abel The like he did in the destruction of the five Cities notwithstanding his omniscience no doubt to prescribe unto man a
privatum commodnm sapè faciunt judicem non cognoscere verum lib. 1. Rhetoricorum Affection Hatred and private commodity makes many times a Iudge not to know the truth And who knowes not that in all ages the world hath much halted on that legge I meane of Injustice And some will unhappily say that this age wherein we live is not much better then her predecessours Now my last Argument in this case shall be Ad hominem convincing my Adversaries by their owne practise As thus If it be not lawfull for the Subject or Inferiour to question the sentence of his Superiour the Priest of the Bishop I then demand How came it to passe that in England of late our Friars doe question the commaund of the Bishop of Calcedon that most reverend pious learned Prelat who was placed over the English Cleargy by the See Apostolicke Whereâ—ore did the Monkes as also the Ignatian Friars or Iesuites write diverse bookes and treatises against him which bookes we have seene and read surely these Monkes were none of the Lord of Calcedon his Superiours at all Againe What is the cause why that libelling Friar of S. Francis Order cloaking his infamous writings under the name of Edmundus Vrsulanus in his booke called Examen Iuridicum Censurae Parisiensis is so bold not onely to call in question but absolutely to condemne the Excommunication of the most Illustrious Archbishop of Paris published against such as shall defend maintaine the Eleven Propositions commonly called the Irish Propositions Vrsulâ—â—us himselfe being but a seditious Friar and I trow none of the Archbishops Iudge or Superiour at all And to come neerer home How came it to passe That in Droghedah some ten yeares agoe certaine of the Iesuites being excommunicated that by name by Iames Plonket then Conservator Iuris for the Franciscans And certaine of the Franciscans on the other side excommunicated by an other Indge at the procurement of the Iesuites neither one or other yeelded obedience to the aforesaid Excommunications but both stood stiffely in defence of their owne opinions exclayming against and condemning each other in publicke Sermons to the great scandall disaedification of all good Catholiques And yet neither was the Franciscan or Ignatian Friars Superiours unto those Prelats who for their sakes fulminated those Censures And lastly to come home unto our owne doores What say you gentle Friars unto this late example now in the mouth of every one as well Protestant as Catholicke I say of our Archbishop of Dublin Thomas Flemming alià s Barnwell Friar of the Order of S. Francis who stands at this day excommunicated yea Excommunicatus nominatim denunciatus Excommunicated by name denounced the same by a Papall Excommunication legally for most just causes published against him he not able to give any reason either of the Iujustice or Invalidity thereof remaines obstinately disobediant unto the See Apostolicke to the great scandall disaedification of all Catholickes not onely of this Diocesse Kingdome but thorough the whole Christian World So as he who most injustly contrary to all course of law censured others himselfe is fast bound in the tyes of an excommunication that from the See of Rome So as it may truely be said of him Incidit in lequeum quem fecit super caput ipsius descendet iniquitas ejus He is falne into the Pit which he digged for others and upon his head sh Il his iniquity descend Psal 7. To conclude then this point and summarily to lay together what hath more largely beene discoursed I say forsomuch as the Archbishop our Ordinary hath not troden in the steps of the ancient Fathers not observed such Rules as the sacred Canons Councells and Decrees of the ancient have prescribed to him and all other Iudges as their lawfull Superiours as in all other their Court proceedings so in awarding their senteâ—ces censures but that the said Lord Archb. in the case of the aforenamed Priests most illegally exorbitantly aâ—omolously hath proceeded by publishing his sentence in the first place which ought to be in the last having omitted not onely solemnia juris but essentialia juris not onely the solmnities of the law but even the very life pâ—â—hand essence thereof As first a lawfull citation or calling unto their anâ—wer the examination and probation of cause against them neither hath as the law requireth mentioned in his sentence the particular cause of the peoples Excommunication in hearing the Masses of these two R. Priests but onely as hath beene said in universali in generall in the aire to wit disobedience not individuated they therefore except against his proceedings as most illegall corrupt confidently avouch that the aforesaid censure of Excommunication is nulla irrita invalida voyde invalid of no force so to be held esteemed of all And such Regulars whether they be Monkes or Mendicants which like unto Ephrain against Manasses Manasses against Ephraim but both against Iudah doc labour to extinguish the Cleargy to draw unto themselves as well the dependance and countenance of the people as their purses to that end do teach the Laity that they ought to make great scruple of the aforesaid Excommunication They are false teachers of the number of them of whom the Apostle speaketh unto Tiâ—us 1. qui universas domos subvertunt docentes quae non oportet turpis lucri gratiâ who subvert whole houses teaching such things as they ought not for filthy lucres sake For the Citizens can well witnesse with us that they run from house to house most seditiously incensing and setting the people against us not regarding justice or injustice but what may best serve for the erecting of their so long desired a Monarchy And with such diligence doe these apply their businesse in this matter of the ceusure abusing the ignorance credulity of the Laity as if they cannot draw the good man of the house unto their straine then they betake themselves unto the good-wife from her unto the children Apprentises and servants not ceasing till they have put the whole family into a combustion broyles one with another While we in the meane time with patience have endured all the wrongs injuries of these their seducements yea till with their importunity and many a false corner lye they have made us as odious unto the people as any male factours For what cannot such a multitude perswade Kinsmen to these gossips to those matching these couples bringing custome to that shop giving here the Scapulare there the cord ascribing such vertue protection unto them as holy Church never taught nay attributing such grace merit unto one Satursdayes Fast after they heare take notice of the death of a certaine Spanish Nun called Luissa as more can not be ascribed unto the Passion of our Saviour Christ well worthy to be swayled with faggots in the Inquisition for
priestly function the same so causelesly so inconsequently as he offered at the same time to give him under his hand a testimony of his learning and good life yea and hath often and to diverse averred that he was both an honest and a learned man which many of the. Inhabitants of this Citty and Diocesse can and doe witnesse Neither doe I thinke S. Ambrâ—se Archbishop of Millan came ever provided with his pocket censures of suspension as our Archbishop of Dublin Tho. Flemming alià s Barnwell did when sending for Doctor Peter Cadell as to entreate with him as he pretended upon some occasion of businesse when he saw his time puld out of his breeches a written sentence of a suspension reading the same against him A man of whom malice it selfe cannot finde what to speake amisse And for no other cause but that he refused to bee banished out of his diocesse by him whilst the Archbishop himselfe confessed that he had no cause against him but onely that he had no use of him And the good gentleman thinking it most unreasonable inhumane to be putfiâ—om his friends his small meanes and those few Benefactors which by his honest endeavours he had acquired As especially making a great scruple to obey such a majesticall more then Regall Commandement of Exile desiring as alwayes to be found faithfull to God so also a loyall subject unto his King refused to obey that Banishment Neither yet I trow did ever S. Iohn Chrysostome Archbishop of Constantinople menace the Censure of Suspension in such a case as Tho. Flemming alià s Barnwell L. Archb. of Dublin did unto Fa. Luke Rochfort of blessed memory for not resending a letter back again unto him which formerly he had sent him witnesse Fa. Patrieke Brangan and William Browne Priests at this day living in Dublin who were messengers both of the letter and of the threatned suspension Neither yet I wot well S. Basill Bishop of Cesarea wheâ— a Priest came to complaine of any wrong done him did ever intreat him so irreligiously as the aforesaid L. Archb. of Dublin did Paul Harris Priest the 18. day of Iuly 1631. in Dublin himselfe may well remember the place after he had made such a complaint unto him of his Friars as he was unwilling to heare for redresse of whose wrongs he only had these words from his lippes I will excommunicate you if you come any more in my presence A very sufficient cause no doubt of Excommunication to come into a Bishops presence But truely as in the world a wise and a discreet man will not upon every occasion have his hand upon his dagger ready to lay about him Much lesse becomes it a Prelat of the Church for every triviall much lesse for only framed and devised matters to draw out the spirituall sword of his censures but rather let them remember that they are placed over us as S. Peter tells them 1. Pet. 5. 3. Non ut dominantes in Cleris sed ut forma facti gregis ex animo Not as lording it domineering over the Clergy but rather to be an example of all good conversation unto their flock To which purpose S. Hierom in his Epistle ad Nepotianum Episcopi sacerdot et sciant se esse non dominos honorent clericos quafi clericos ut ipsis Episcopis à clericis quasi Episcopis honor deferatur Scitum est illâ—d Oratoris Domitij Cur ergo inquit te habeam ut principem cùm tu me non habeas ut Senatorem Let the Bishops know themselves to be Priests and no Lords Let them honour Clergy-men as Clergy-men that they againe may give honour unto Bishops as Bishops For elegant is that saying of the Oratour Domitius Wherefore should I regard thee as a Prince when thou dost not use me as a Senatour Like unto which is that of the Councell of Trent Sess 13. cap. 1. If then our Peter hath drawne out his sword rashly and without cause let Peter a Gods name put up his sword againe as our Saviour adviseth him saying Converte gladium tuum in vaginam Put up thy sword into his scabberd That it be not said by lawfull authority another day to such as abuse their swords as our Saviour said unto Peter Qui acceperit gladium gladio peribit He that smiteth with the sword shall perish by the sword And so much of the Reasons or Arguments by which is manifested the Injustice and Invalidity of the Archbishop his Excommunication Yet that no diligence or meanes might be neglected on our parts to reclay me if it were possible our Ordinary from those violent proceedings against the Inhabitants of his Diocesse M r D r Cadell in my absence thogh not without my consent did draw this Petition following which was exhibited unto him in a meeting of Priests by the hands of that R. learned Clergy-man Iames Talbâ—t D r of Divinity ait what time the aforesaid Archbish had made a most bitter invective Oration unto that assembly against D r Cadell my selfe to the end he might make us as odious unto them as we are displeasing unto himselfe But understand good Reader that all our Ordinaryes invectives as all his Friars detractions obmurmurations against us are ever in our absence when as we are farre enough off from hearing or answering them Such was the Oration of Caesar the Dictator in the Senat-house against Cneius Pompeius to precure him the envy hatred of the people the famous Pompey being at that time many leagues from Rome And such was the insinuation of Haman in the eares of the great Assuerus against Mardocheâ—s his people Esther 2. when there was none in place to answer for them But now to the Petition To the right Hon Tho. Flemming alià s Barnwell L. Archbishop of Dublin The humble Petition of Peter Cadell Priest and D r of Divinity HVmbly sheweth unto your Hon your suppliant that whereas your Lo the 6. of March last past caused aâ— Excommunication lata sententiae to be published against the Inhabitants of this Diocesse of Dublin prohibiting them to heare or to be present at the Masses of Paul Harris of D r Peter Cadell Priests without any crime or cause ever proved against the afore-named Priests to the great scandall of the whole Kingdome the disaedification ruine of many soules to the utter disgrace defamatioÌ„ of the aforesaid Priests being of good esteeme reputation in this city of Dublin Your Suppliant therefore considering the censure of Excommunication to be the greatest and severest punishment with which the Church doth chastise delinquents notorious offenders introduced appointed by the same Church In medicinam non in ruinam animarum and that the deliaquents should rather be punished then the innocents Your Petitioner in all due and canonicall obedience submitting himselfe unto your Hon as his Pastour humbly desireth that your L. would be pleased to take the matter uuto your mature