civill Court thus farre Iustinian In which first part of the Emperour Iustinians Novel I may not passe diverse points untouched this for one That Menua is glad to come on his knees and to make humble suite for this priviledge then surely his Churchmen had no such exemption before from God himselfe or Iure divino by Gods law for had the good Patriarch had that string to his Bow by Gods holy Ordinance or constitution doubtlesse his humble begging and earnest Petition for this humane priviledge had been by his leave and yes too Hetrodox no better then direct and voluntary rushing into sinne This for another that Iustinian grants not Menua the Court in any absolute straine or terme but only allowes him to give judgement or sentence without any clamorous noyse and without any formall instruments in writing a course clean contrary to modern practise in our Ecclesiasticall Courts where commonly more clamour and noyse more Advocates Proctors Notaries more Offices and Ministers more chargeable Fees are paid for Transcripts breviats Bookes and such like instruments then are in Courts of secular justice This for a third that Iustinian puts down the reason whereby he was induced to grant such priviledge to wit that Clerics not disquieted nor disturbed with clamours and noises of Courts might more diligently and freely attend upon their divine offices and Ministeriall Functions This for the fourth and last Iustinian grants no absolute but only conditionall priviledge The second point observable in the Novell that in criminall causes of civill nature and kind meerely temporall without any smack or rellish of spirituals which Couaruvias expounds in these words Quae spiritualia non attingunt such as touch not the hemne of the spirituall garment Church-men within the City of Constantinople shall be tryed and judged by competent secular Judges and through the whole Empire besides by the Prefects or L. Presidents in their severall Provinces and that moreover with a certain limitation or stint of time namâ—ly that within the tearm and space of two moneths the matter shall be drawn to a head and shall come to a finall issue or end and that sentence being once sped or passed against a Cleric by the L. President of any Province the President shall not proceed to execution before the said Cleric is degraded and quite divested of his priestly or sacerdotall dignity by the Bishop according to the laudable custome and usuall manner in such cases The Emperours own words are thus directly couched in the Novell Si tamen de criminalibus conveniantur c. but if a Church-man be convented or brought Coram nobis upon some criminall cause of a civill nature that is to say such as no way hath dependance or correspondence with Ecclesiastic Regiment or Church-discipline in such a case he shall come to tryall within this imperiall City before competent Judges and in all the Provinces before the most honourable Presidents of the same provided the suite depend or hold not above two months after the Actor hath put in his Declaration and the Reus his Answer or defence that so the suite may have the shorter cut and the more expedite dispatch And in case the President shall find the party impleaded to be guilty in the action and thereupon shall adjudge him to undergo and suffer the punishment ordained and inflicted by Law then the party so judged shall first be deposed from his Priestly Orders and Church dignities by the Bishop beloved of God and after that he shall come under the hand or suffer the penalty of the Lawes In which words likewise divers points are to be observed viz. That some offences criminall are meerely civill meerely politic no way within compasse of spirituall respect or consideration that crimes and offences of such nature are tryable and punishable by temporall Magistrates that Churchmen for the said offences may be sentenced and condemned to death by a temporall Judge that Justinian bindes not himselfe or his LL. the Judges within the City of Constantinople to cause a Priest or Cleric first of all to be degraded and after to be transmitted over into the hands of civil Ministers of justice but in such case he binds only the provinciall Presidents himselfe as the Soveraign and the Judges in Constantinople as his Commissioners Delegates or Subaltern Magistrates remaining exempt and free from such obligation to give order for the degrading of such Delinquents before execution that sentence of the secular Judge must precede and then degradation is to follow before execution for Manus legum the hand of the lawes is the executioner of haut justice from whence it is directly to be deduced that Hetrodox hath drawn but a sinister left handed untoward and perverse construction of Iustinians Novell in bearing us in hand that Churchmen for offeâ—ces and crimes of this nature are first forsooth to be judged and withall to be degraded by the Bâ—shop and after to feel the weight of the secular arme for faith Hetrodox Et tâ—nc sub legum fieri maâ—â— and then to undergo the deadly stroake of the law whereas without all ambiguity the great and learned Emperour speakes in perspicuous tearmes and sayes that a definitive sentence of the secular Judge shall precâ—de degradation by the Bishop shall second execution of the sentence shall follow in the Reare and yet withall that such course of proceeding shall be only held in the Provinces and not in the imperiall City The third point or branch of the said Novell that in case a Clerics offence be of Ecclesiasticall nature namely such as requires and calles for justice by some ecclesiasticall censure or penalty thâ—n the punishment shall be inflicted and the penalty awarded according to the divine and sacred rules or Canons which in such cases the lawes imperiall do not hold it any abatement or disparâ—gement of their honour to follow The Emperours proper words runne precisely thus Si vero Ecclesiasticum siâ— delictum c. But when the offence is meerely Ecclesiastic such as requires the censure and correction of the Church then shall the Bishop beloved of God take due contemplation of the nature quality and merit of the offence the right honourable Judges residing and exercising their charge in the severall Provinces shall beare no hand and strike no stroake in the busines neither as head nor foot for it is not our pleasure or mind at any hand that civill Magistrates take any cognizance at all of such cases because they are to be sifted scanned and tryed by ecclesiasticall proceedings and the faults of delinquents in that kind are corrigible only by Ecclesiastic censures according to the sacred Canons which our lawes imperiall do not disdaine to imitate In which branch or context of the Novell these few heads come in like manner to be observed that some offences are meerly ecclesiasticall and annexed to the clericall order that when the holy Canons and sacred Scripture make it lawfull for Prelates to inflict and
parties are once drawn into that course it orders them to steere altogether by that compasse and to stand to the tacklings of their determination Now I would gladly learn of you Hetrodox what makes all this for distinction of Courts or to prove there were two distinct Courts two ordinary and competent Judges one for seculars another for the Civill and criminall causes of Churchmen before Justinians constitution 8. You alleadge the authority of the Milenitane Councell wherein it is commanded according to the Apostles councell that Bishops are to accomodate civill causes between themselves that no Bishop shall by Petition demand of the imperiall Majesty a Judge in public judgements but in case he obtaine of the Emperour some ecclesiasticall Judge then he shall not be impeached or contradicted I will here for the purpose alleadge the Canon it selfe Placuit ut quicunque c. It is decreed that whosoever shall Petiton the imperiall Majesty to have his cause come to cognisance and tryall in public judgements he shall be deprived of his dignity but in case he shall solicite the Emperour for Episcopall judgement that shall be no maime no losse no blot no blemish no diminution to his estate In which words first a Bishop is inhibited and restrained from seeking of public judgement before seculars but is not inhibited to make appearance in case he shall be summoned and served with one of his Majesties writs to that purpose Secondly he is permitted to petition the Emperour that his cause may be tryed and judged by the Bishop as hath been shewed before From whence the plain contrary to your pretence and assertion may aptly be collected that in those times there was no distinction of Court but all causes whether of Churchmen or seculars were to be tryed neither in public nor in private judgement unlesse the Emperour himselfe did give way by speciall permission and most gracious licence Nay the very same Councell ordaines Can. 16. that petition shall be made to the most glorious Emperour to be graciously pleased that certain Judges by their imperiall authority might be commanded to appoint and assigne for Churchmen certain Advocates who might protect defend plead the causes of the Church before the said secular Judges It is therefore very manifest by this Canon that Churchmens causes were then handled before the imperiall Judges 9. You blush not also to babble that Justinian usurped excessive or more then due and lawfull authority to frame penne and publish those his Constitutions But I must here be bold to tell you Hetrodox even to your face the judgement of infinite Councels and pontificiall Fathers more especially and by that name of Adrian 4. as hereafter shall better appeare carries a great over-weight in the scales or ballance of sound judgement in comparison of this your new and late upstart censure of a most christian and learned Emperour They never once dreamt of such a partiall verdict as you like a bold fore-man of a corrupt and frontlesse Jury have now presumptuously blurted forth No Sir no Iustinians Constitutions and those likewise of many other Christian Princes in the Primitive Church and age have been ever most cordially caressed with great and speciall humility even in ecclesiasticall matters and other occurrents of like nature and to what purpose To what end That sacred Canons confirmed by imperiall authority might go forth with flying colours to worke the deeper impression of due observance in the mindes and hearts of all People I passe over many examples and wish men to peruse but one Epistle of Pope Leo wherein he Petitions the Emperour Martianus to confirm the Chalcedon Councell and obtaines his Petition of the most gracious and noble Emperour when the pontificiall BP Church of Rome carried that respect humble observance toward Christian Princes which to their imperiall Crowns and Scepters appertaines in those times the Popes and the Church were held in great veneration and admiration withall But so soone as the Church grew to vilipend the R gall authority of Christian Princes into how great and grievous calamities hath she not fallen tumbled hath she not precipitated her former glorious estate What eclypse of her ancient lustre What spots and staines to her Primitive and Native beauty hâ—th she not suffered and indured Let men peruse the life of Boniface 8. of Alexander 3. of Gregory 7. of Julius 2. of Sixtus 4. of Clement 7. of Paul 4. and they shall see without helpe of spectacle or perspective glasses that by vilifying of Christian Kings and Princes the Church may put all her winnings in her eye like an unfortunate and unthrifty Gamester and see never the worse Thus much I wot well that Iustinian was deeply and excellently studied superlatively learned in the Lawes followed and frequented by men of incomparable knowledge and learning and the whole world hath pitcht his authority at a higher price and rate then the shallow judgement given out against his more then eminent gifts by whomsoever without exception Canonist or Cardinall Prelate or Pope 10. By Manus legum the hand of the Lawes for so I like to turne it for this turne you understand the secular Judge whereas before it hath bin shewed to be the lawfull execution of a sentence 11. You affirme the lawes imperiall thinke not scorne to second the sacred Canons and this you pronounce in the generall sence comprehension whereas the Emperour speakes of causes meerly ecclesiasticall and spirituall Besides you contend that the due practise of Iustinians Constitution and the practise of sacred Canons cannot concurre and stand together wherein also with your leave your selfe stands not in the right For doubtlesse the sacred Canons as wee hold are to be duely observed howsoever they beare nor sway nor weight of authority Nisi ex priviligio principum but by the force and vertue of Princely priviledge And in case they be grounded upon so stable a foundation and firm authority as you vaunt wherefore have you been so greatly overseen to make no demonstration thereof by some cleere text of holy Scripture For to transcend the walls or to passe the bounds limits of Princely power without consent of parties interessed is neither acceptable to God nor pleasing to man 12. You counter-poise a Frederick one living but yesterday in a manner against a Iustinian a Prince who reigned when piety with Discipline flourished in the Church like a green Bay Tree You parallel an Emperour of ordinary capacity and small knowledge with an Emperour the most compleat legist in all ages of the world a low shrub in such regard with a tall Oake or the goodliest Cedar in Libanon a Frederick with a Iustinian a Frederick who framed his foresaid constitution out of a cunning counterfeit or disgiused humour whereas never any Prince hath more abased the liberty of the Church and hath more brought it down as it were upon the knees then that Frederick hath whom for the same cause Gregory 9. was
it is to be clearly seen in Constantines own practise against Caecilianus the Bishop of Carthage whose cause being accused promoted by the Donatists Constantine himselfe durst neither sift nor touch but only ordered that Caecilianus and his cause should be transmitted to Rome and there should undergo the censure of the holy Father who then was Meltiades this was the practise of Constantine to confound the Donatists with an intention or mind to crave pardon of the Bishops for thrusting his crooked Sickle into other mens harvest and intruding himselfe into a businesse of that spirituall nature Optat. lib. contra parmen Aug. Ep. 48. 162. as forced or drawn thereunto by the violent necessity of the said cause witnesse Optatus Milenitanus and S. Augustine in diverse of his Epistles Orthod I never knew nor heard before this day that excesse of love and superlative praise in any sort or fashion whatsoever to a good end should merit the distastefull name of a lye Hath not Cardinall Bellarmine himselfe expounded the Canon Quicunque of Theodosius in the very same phrase and stile By name that certes Theodosius framed that Canon in the excesse of his piety But let us passe that circumstance and come to the maine of your last passage it will not be denyed that as in secular Causes temporall Princes may be called Gods even so Priests in spirituall causes may have the honour of the same name howbeit with your leave that text Deus stetit God standeth in the Assembly of Gods by Hetrodox late alleadged is understood of secular Princes and not of Priests as you Hetrodox would insinuate But seeing that Ruffinus you say hath recorded that Constantine tooke it in your sence Valeat quantum valere potest be it of what force or credit it may or can most certain it is that neither Ruffinus nor Constantine himselfe with all his greatnesse can hold water or weight with expositors of sacred Scripture howbeit from hence there can be made no firme and solid inference that Constantines words ad Dei judicium yea are doubtlesse reserved to Gods judgement are thus to be understood id est Prelati to the Prelates judgment because he exerciseth Gods judgement For Constantine there speaks without any termes of ambiguity waite you for the judgment of God alone reserve your causes and quarrels to tryall at his lâ—st and great Assizes for you are given unto us of God as Gods very unmeet it is that men should presume to judge Gods but he alone of whom it is written God standeth in the Assembly of Gods In which words first I observe that here Constantine hath an eye only to spirituall causes for so much as here he speaketh of Ecclesiastics not as men but as Gods by vertue of their spirituall power to bind and loose Secondly that he meddles not here with any humane judgement but expressely with the last judgement of God Thirdly that he speakes not of any God which makes the whole number of the Assembly but of the God who stands in the Assembly of Gods even of that God who is the supream and Soveraign Judge This of Constantine therefore is a kind of speech in excesse as before hath been said And as for your anticipation that when the Prelate judgeth God himselfe then judgeth by the Prelate and therefore not man but God himselfe is the Judge I must be bold to tell you Hetrodox it lacks just weight and therefore may not be allowed to go currant For by the same reason it shall hold good and strong that when the secular Magistrate sits in the seate of justice it is not man that gives judgement but God himselfe because the Magistrate is Dei Minister Gods Minister to take vengeance on such as do evill Moreover for so much as all Prelats yea the highest Bishop himselfe may erre saith Cardinall Bellarmine in many places which likewise is the common opinion yea and many times hath actually erred In judiciis facti in judgement of the Fact it is therefore not absolutely to be held that when they judge then God himselfe judgeth because it is impossible for to erre as it is to lye upon this exposition of Constantines words whether his own or the words of Ruffinus uttered by a straine of excesse in things not intelligible you runne into diverse errours 1. First be it in some sort granted that Priests are not lawfully to be tryed by the temporall Magistrate or secular Prince in such causes wherein Priests by Constantine are called Judges yet can it not be inferred without errour that in temporall and secular causes wherein Priests will they nill they are and must be Subjects they ought not to be judged by the same Prince 2. Secondly To affirme that God made Moses King Pharaohs Judge because he said to Moses I have made thee Pharaohs God what can it be but an erroneous misprision and a violent wrâ—sting of the holy text For God gave Moses no authority to be Pharaohs Judge in any sort whatsoever least of all was he armed with such authority as in the quality of a Priest But say that Moses was a Priest as wee Catholics believe and teach yet he was but Priest unto the Hebrewes Gods own people he had no authority over King Pharaoh an Egyptian and Idolater But because Moses with a Rod in his hand wrought so great miracles and wonders in the sight of King Pharaoh not possible by any Saint or devil to be done but onely by the finger and power of the true Almighty eternall God therefore it was that God said to Moses I have made thee Pharaohs God 3. Lastly you affirme Hetrodox wherein I wish you to take some sight and knowledge of your errour that Pope Meltiades had lawfull power to judge the cause of Caecilianus Bishop of Carthage because Constantine turned him over to the Consistory and Chaire of Meltiades at Rome I will not deny that civill and criminall causes may come to judgement before Consistorian Judges but when Forsooth when Christian Princes are graciously pleased by their Charters Commissions Grants and speciall Graces or priviledges to lay open such Gaps and to give such waies Much lesse will I deny that in causes meerly ecclesiasticall the Pope is to inflict and fasten correction upon Bishops and Bishops to take round courses against such as do stand within the reach of their Episcopall Verges but I must confidently affirme and stand to it like a man when all is done or said that in civill and criminall causes meerly temporall the Prince hath lawfull power from God to judge ecclesiastics when he hath not disarmed himselfe of his lawfull authority by some former gracious grant And this I confirme even by the very same act of Constantine which your selfe have produced and alledged For Constantine you say transmitted an act of power and authority the cause of Caecilianus unto the Pope and afterward himselfe sate upon Caecilianus in place of judgement All Ecclesiastics
Moses c. But Couaruvias with many catholique Doctors doth avouch that doubtlesse it is an evident sign and strong presumption that in temporall matters and in civill judgements the Levites were not subject unto the High Priest but unto the temporall Prince or Judge Because when Moses by a kind of mean conveyance and resignation as Catholiques would have it transmitted or transferred his whole authority of high Priest and his attendance upon the sacred service unto Aaron yet by no meanes did he then deprive or divest himselfe of authority to judge the Priests and Levits in their temporals And from hence it is evicted that such authority was not knit by any essentiall connexion to the office of the high Priest for had it been connexed in such a manner no doubt Moses would never have so wickedly robbed and cozened Aaron of such a collop as the moety or one halfe of his authority First of all lest he should be noted to wrong his brother Aaron in so high a degree namely by stripping him of no lesse then a whole moety or one halfe of his entire charge again because exemption of Clerics being as you pretend so grounded on Gods Law Moses was to leave the whole course exercise and execution of judgement in the hand of Aaron their ordinary and competent Judge lastly because Moses thereby should have gained the more free scope and greater liberty to serve in other politick imployments and affaires But howsoever Moses was both Priest and high Priest before Aaron if so much must needs be granted yet sure it is a flat Non sequitur to inferre Therefore at one and the same instant two high Priests concurred Quoad exercitium both at once executing and exercising one and the same office For wheresoever the Scripture makes mention of the high Priest it never points out Moses for the man but Aaron as Paul speaking of the high Priest Hebr. 5. saith not Who is called of God the high Priest as Moses was called but as Aaron was called As for the Fathers whom you cite and alleadge adorning Moses with all the foresaid titles I dare take upon me to affirme they witnesse the state and condition of Moses only before the time of Aarons consecration but none of them all do qualifie Moses high Priest Quoad exercitium in point of executing of the high Priests Office after Aaron himselfe was once made and consecrated high Priest For the Church with two heads in spirituals had then bin a very Monster withall the unity of the Church and of Christ himselfe had been thereby very poorely and weakely represented but in case you are so certaine as you seem That Levits were exempted from all power and judgement of the temporall Prince in temporals what meant you to be so farre overseen as to alleadge not so much as one testimony divine or humane in demonstration thereof As I and my Authors have produced two this of Moses for one and that of Solomon 1 Reg. 2. for another Howbeit had you produced any one such testimony yet for so much as the Ceremoniall and Judiciall precepts of the old Law are now abrogated I see not how they could make any thing or stand you in any stead at all for your purpose because I require and stand upon precepts of exemption drawn from Evangelicall and not from legall grounds Hetrod What man It seemes then you purpose now to inferre there was no distinction of Court in the Primitive Church Orthod You have it right in very deed there was no distinction of Court before Justinians time he was the first who upon the humble Petition and suite of Menua Bishop of Constantinople granted that Ecclesiastics might be judged in civill causes by their Prelates Nov. constit 83. Ipso tamen non impedito provided alwaies that his imperiall prerogative thereby were not any manner of way impeached In which case and in case of criminall Delinquents he leaves Ecclesiastics under the power of the temporall Prince and of his Ministers Hetrod I thinke you dreame Orthodox at least I believe you are groslly mistaken S. Paul averres the contrary that in the Primitive Church the Bishop had his peculiar Tribunall and in his own Court gave judgement or sentence upon his ecclesiasticall Subjects I mean his Cleargy Against an Elder saith Paul receive no accusation but under two or three witnesses that is to say admit none to put in a Bill or to preferre Articles against any Priest before thy Tribunall-seat except it be Billa vera or articles verified by the depositions of two or three witnesses I can dazle your eyes with a huge cloud of Councels but I am very loth to impaire your sight a few shall suffice The Councell of Agatha in Provence thus Conc. Canon 32. Clericus nè quenquam praesumat c. A Cleric shall not presume to sue any man before a secular Judge and in case a Cleric be sued in any such Court of Record he shall not put in his answer to the Declaration in any criminall cause before a secular Judge Conc. 1. Canon 9. The generall Councell held and celebrated at Chalcedon in Bethinia before Justinian was hatcht hath decreed in these expresse words Si Clericus adversus Clericum c. If one Cleric shall have an action against another the plaintiffe shall enter his action and prosecute the suite before his own Ordinary and not before any secular Judge The third Councell at Carthage in Africa more ancient you know then the former at Agatha Canon 9. about some 130. yeares before Justitian peept out of the shell thus Item placuit c. Furthermore it is decreed that if any Bishop or Presbyter Deacon or Cleric shall decline his own competent Judge and peculiar Court or cause plea to be entered or made in any other Court of judiciall audience and preceeding he shall forfeit his Ecclesiasticall dignity or other his pastorall charge if the action be of any criminall nature or quality though the sentence doth passe for the plaintiffe in case it be a civill action he shall then pay cost and dammage yea he shall forfeit whatsoever he hath evicted by sentence of the said Court The Milenitane Councell of like antiquity to that of Carthage Can. 19. thus Placuit ut quicunque c. Wee decree that whosoever shall petition the imperiall Majesty to take cognizance of his cause for Oyer Terminer thereof in any of his Majesties imperiall Courts he shall be deprived of his ecclesiasticall Dignity Now then Orthodox upon what ground what authority what warrant dare you affirme that in the Primitive Church there was no distinction of Court and that Justinian was the first by whose constitutions it was ordained and provided that Ecclesiasticks were priviledged to have their tryals and sentences before their Prelates But in plain truth at least if you can abide to heare the truth because Iustinian was a Prince who by usurpation of more then competent
authority sought indeed to heare the causes of Ecclesiastics and thereby intruded himselfe to cut as it were their spreading Combes for that reason Menua in all submissive humility petitioned Iustinian to leave the cognisance at least of civill causes unto the Bishop to which Petition the Emperour was pleased to give both gracious care and princely grant How true it is that Iustinian usurped excessive authority it is evident by his practise for he both shufled and cut the cards he intruded himselfe to bridle the Clergy to tye and hold them short unto the stake by his Lawes as well in spirituals as temporals who so lists to read the titles De sanctit Episcop de sacro sanct Ecclesiis may clearely see the same with halfe an eye but more pregnant and positive for the purpose is the Nomocanon of Photius Howbeit you know Orthodox it is the doctrine of all Divines and Canonists yea of Couaruvias himselfe too that by Gods own word the judgement of spirituall causes belongs only to Bishops and to the highest Bishop as to the supreame Judge whereupon both before Iustinian and after the sacred Councels have debarred and restrained the clergy by expresse and peremptory inhibition from procuring any tryals before secular Judges as in the councell of Toledo besides divers other Councels it is more then manifest Perhaps Tholouse in France Can. 13. And that all the world may see the foundation which you have laid I mean that novell-constitution 83. of Iustinian to be but a rotten foundation it is much considerable that Iustinian himselfe in the very same constitution hath decreed it shall not be lawfull for the secular Judge to punish an ecclesiasticall person except first he be deprived by his own Ordinary of his Clericall dignity and thereby brought under the whip or lash of the common lawes Now if ecclesiastics be not found within the compasse and power of the common lawes before they be degraded by the Bâ—shop how shall they be judged and sentenced by any secular power so long as they are still invested with clericall dignity and holy Orders In the same constitution it is professed by the said Emperour that his lawes imperiall thinke not scorn to follow and come after the sacred Canons whereas then by the said Canons it is well and wisely decreed provided and ordered that Ecclesiasticks are to be judged by their own superiors how can the said constitution stand in force and be observed which determines the cleane contrary And now to draw the Arrow up close to the very point of the head the inconvenience of this decree made by the Emperour Iustinian seemed to the judgement of Frederick the second to be of so dangerous a straine and consequence that he repealed the foresaid law of Justinian with all other the like lawes repugnant unto the liberty of the Church for it is found in Fredericks first constitution thus recorded Sanâ— infideliam quorundam c. the pravity of certain miscreant and unjust Princes hath so disborded and over-flown the Banks that now contrary to the discipline of the holy Apostles and to the name of sacred Canons they make no bones to contrive new Statutes and to frame new lawes against Church-men and Church-liberty A little after Statuimus ut nullus c. Wee decree that none shall presume to sue any ecclesiasticall person before a secular Judge in any criminall or civill cause contrary to the imperiall constitutions and canonicall decrees and in case any suite shall be otherwise commenced or entered wee decree the plaintiffe to lose his cause and to take no benefit of the Judges order or sentence as also the Judge himselfe to be put out of the commission for Judicature Likewise the Emperour Basilius long before Frederick repealed a law made by the Emperour Nicephorus against ecclesiastics liberty with asseveration that infinite calamities like epidemicall diseases or publique ulcers and botches had runne over and infected the whole body of State and common wealth with poyson of the said pestiferous and unwholsome lawes let Balsamon upon the Nomocanon of Photius be consulted and viewed where he expounds the first Canon of the first and second Councels celebrated at Constantinople and thus much touching the authority of your great Iustinian Orthod I am not ignorant Hetrodox in whose goodly Vivaries or fresh Ponds you have taken so great paines to fish for this dish of dainty Mullets as you suppose but saving his savour with whose heifers you have thus plowed up the goodly field of the Emperour Iustinians 38. Novel the said Novell comprehends three distinct parts the first is that upon petition of Menua this noble Emperour sealed a patent and passed a most gratious priviledge for the Cleargy of this faire tenure and tenour that in matter of pecuniary causes called after the common stile civill causes Church-men might be tryed and judged by their Prelates Non ex scripto without some formall drawing of Bils Bookes or pleas except both parties agreed to have some necessary essentiall and materiall points of the case formally drawn couched and put down in writing and in case the knot or difficulty of the matter would not beare and suffer such summary decision then it should be free and lawfull for the complainants to take the benefit of civill Courts and to commence their suites before the ordinary secular Judges The Emperours own words lye penned thus Petiâ—i sumus c. Menua beloved of God Arch-bishop of this most flourishing City and universall patriarch by humble Petition hath moved our imperiall highnesse to grant unto the most reverend Cleargy this gracious priviledge that if any shall have just and lawfull occasion to sue Churchmen in a pecuniary cause he shall first repaire unto the Archbishop beloved of God as unto his Diocesan within whose jurisdiction he then liveth and inhabiteth and shall require the Archbishop to take information of the cause whereby he may merit his judgement Ex non scripto by summary proceeding without drawing of Bookes or breviats And in case the Archbishop shall undertake to proceed in such forme the Cleric shall not be molested nor drawn into any Court of civill Audience nor driven to intermit the exercises of his holy Function but rather without damages the cause it selfe shall be throughly canvased and sifted Ex non scripto Howbeit withall the said cause may be couâ—hed in written forme if the parties be willing and condescend both alike to require that course and to relinquish the other but in case for the quality of the cause or for some other emergent difficulty the Bishop beloved of God shall not be able by any meanes possible to make a full and finall end of the matter then shall it be lawfull to bring the said cause before civill Judges and Magistrates and all priviledges granted to the right reverend Churchmen preserved it shall be lawfull to implead to take examinations to make a finall end of the suite and contention in the
plaintiffs or defendants in criminall cases inhibits Churchmen to runne that course to the end they might avoid the danger of running into the state of irregularity Non permittente Episcopo when the Bishop gives no way to the said course This practise I grant is still in use and to this day goes currant But what force what vigour what sinew is in this moderne practise to prove distinction of Court in the Primitive ages and times Nay it rather inferres the contrary that doubtlesse then there was not any other Court authorized besides that of the secular and temporall Magistrate unto which in as much as Churchmen were to have recourse in criminall cases for feare of incurring irregularity the said Councell hath taken due care and order for the Bishops good care and free consent And this jarres not with my doctrine but jumpes with it hand in hand besides the said ancient Councels were called and held alwaies with consent of the secular Prince and yet all this here spoken is no demonstrative proofe of your pretended distinction 7. The Câ—non of the third Councell held at Carthage speakes not in your language affords no such matter as you insert and inferre makes no distinction of the judiciall Court It layes inhibition upon Bishops and Churchmen after the controversie once is on foot before secular Judges or christian Arbiters at no hand to cast off and relinquish the said Aâ—biters but rather to labour for the deciding and knitting up of such controversie without seeking to any other competent Judge not agreed upon by both parties to rest in their finall determination and arbitrement for the better averting and avoyding of scandall or offence For the better conceiving of this Canon it is to be understood that Christians in the Primitive Church came to agreement in certain controversies growing betwixt parties and with reciprocall or mutuall consent made choise of Infidell or unbelieving Arbiters a fault for which the Apostle Paul somewhat roundly and sharply tooke up the Corinthians in these words Secularia igitur judicia c. If then yee have judgemènts of things pertaining to this life set up such in the Church as are contemptible or at loast esteemed to give judgment I speake this to your shame is it so 1 Cor. 6. that amongst you of the Church there is not one wise man Not one that can judge the causes of Bretheren These words are not very many as all men see and yet do minister diverse matters to be considered As that Paul here speakes of secular busines and temporall causes item of such Judges as by any one might be chosen and appointed of indâ—fferent arbitrators men without any Presidentsh p or commission in tribunals or Courts for he saith Hes constituite set yee up such c. Item the Apostle speakes not of chusing and setting up Bishops in these cases but of such as were of no great ability or sufficiency for the discharging of the said good office men whom there he calls Contemptibiles men of no speciall regard or estimation of which Apostolicall text Chrysostome hath given this excellent exposition Apostoli talibâ—â— non vacabant c. The Apostles themselves never troubled their heads never busied their braines they were at no leisure to deale or to take any paines about litigious occurrents between party and party or about secular judgements their whole Ministery was imployed and spent altogether in travailing through all Nations and teaching in all places where they went but men of the more discreet sort and ranke howsoever otherwise they were men of the meaner condition and lesser merit had the managing or working upon things of that nature And so S. Gregory according to the glosse Terrenas causas examinant c. I advise that men of discretion in outward matters may fift and bolt out causes of worldly nature as for men of endowment with spirituall and heavenly gifts of another element and more transcendent efficacy and power they are not by any meanes to intangle their mindes or to be taken like wild and untame Deere in the strong toyles of terrene matters too farre out of their proper element Item S. Paul what power and authority soever he was armed withall and by some it is thought with Papall power saith not I set up or I appoint but referring such matters to the parties interessed themselves he saith see that yee set up be it your own act and ordinance Nor speakes he of Priests or of priestly orders or of Bishops but in a generall comprehension he speakes of the faithfull who had no exemption from the Princes Tribunals at least seculars according to the opinion of all were not exempted Now this was practised in Africa but whereas many Prelates Bishops and Church men when they first practised this course commenced a new course afterwards by recourse to secular and competent Judges the Councell therefore to meet with so great a mischiefe made that ninth Canon by you cited before in this tenour and stile Item placuit ut quisquis Episcoporum c. Wee moreover appoint and ordaine That whensoever a Bishop Deacon or Cleric charged with any crime and sued in any civill cause shall decline and forsake the Court ecclesiasticall or shall seeke to purge and quit himselfe in any other Court of public judgement he shall then be deprived yea though he carry the cause and winne the day by sentence of his dignity and place if the judgement be criminall but in case it be civill he shall then loose the cause if he mean to preserve and keepe his dignity For he that hath free liberty to make choise of his Judge where he lists himselfe and best likes declares himselfe to be unworthy of the ranck and fellowship of Christian bretheren when he carries a sinister partiall and prejudicate opinion of the Church not forbearing to crave the helpe and favour of secular judgement whereas the Apostle commands the causes of private Christians to be brought to the cognisance of the Church and there to have both full and finall determination which words make evident demonstration of diverse points First of all that you Hetrodox have slily sought to put out mine eye with a text or Canon of this councell which you make but a plain Curtall with a Manâ— undecently shorne with a â—â—it nose and cropt eares as if it had stood upon some Pillory lime and limping besides of the neâ—re lâ—g before Secondly That in this Canon there is no mention at all of any public Court of any competent Judge or of any Prelate but only of Arbiter Judges of seculars and of private judgement Thirdly That by the said Councell it is carefully provided and ordained that whensoever Churchmen shall give any public offence or open scandall then they are to be punished with deprivation and lossâ— of their Free-hold Fourthly and lastly that in the Canon there is couched no expresse precept or direct charge for chusing the said Arbiters when the
of his words as we find it spun and woven by his owne fingers Credimus Romanum Pontificem quatenus solùm est Rom. Pontifex Vicarius Christi summus nudus ab omnibus Privilegiis donariis humanis nullam habere Potestatem Laicam neque Summam neque Mediam neque infimam neque Actu neque Habitu habere vero Potestatem Ecclesiasticam nonè à Christo Servaâ—ore nostro institutam qualis nunquam ante illius institutionem in orbe fuit quaeque est Species Potestatis distinctae à Laica longè nobilior ea ut Aurum est Species Metalli distincta à Specie plumbi â—â nobilior quaeque directè solùm amplectitur super-naturalia indirectè vero eatenus naturalia quatenus sunt necessaria ad consecutionem finis supernaturalis ob quem sunt instituta In which Text of Navarrus the longer it is the more points are observeable As first of all that where you charge Navarrus to affirme that Papall power is not meerely Temporall hee gives not so much as the least suspition of the said pretended and imputed affirmation he rather stands out and holds out for the cleane contrary assertion Then secondly that what Laick power soever is annexed to the Pope he hath got it by the Priviledges of noble Princes and by the Donaries if I may take up Navarrus his owne word of Magnificent Personages but not as Christs Vicar Then thirdly that as the Vicar of Christ he hath not a hands breadth not an Inch of Laick power neither in the highest degree nor in the middle ranke nor in the lowest region Then fourthly that he hath neither the Act nor the Habit of Laick power whereby he may be so much as enabled to exercise the same though he should never put it in practise but keepe it up close like a Bee in a Box or as men say like a Sword alwaies in the Scabbard Then fiftly that his power is Ecclesiasticall the same that was instituted by Christ our Lord a power never heard of in the world before Christs institution Then Sixtly that his Ecclesiasticall power hath nothing at all to doe with Laick power but is directly distinct from the same in Specie as the Species of Gold is directly distinct from the Species of Lead so that as Gold is not Lead and Lead is not Gold even in like manner Papall power is no way Temporall and Laick power is no way the same with Papall power Then Seventhly that Papall power directly stretcheth out his arms to imbrace things that are Supernaturall as Grace by name given by his Holinesse thorow the meanes of holy Sacraments as Catholiques believe and the same grace is meerely a thing Supernaturall Eightly and lastly that Pontificiall power indirectly makes use of things naturall instituted by Christ for a Supernaturall end as water to baptise oyle for that action which we call Extreame or last unction 1 Cor. 19. and silver for Almes ordaining besides that hee who serves at the Altar should live by the Altar and that no mouth of any Oxe which treads out the corne be at any time muzzeled according to Christs institution for the better obtaining of the Supernaturall end This is the power whereof Navarrus affirmes as you seeke to beare me downe that forsooth it is not meerely Temporall Doth Navarrus there speake of Temporall power Nay doth Navarrus once dreame thereof For albeit he speakes of the use of naturall things yet he cals them neither Secular nor Temporall nor Civill but onely naturall and restraines them to those things which were instituted to a Supernaturall end and not so far forth as they are naturall but as they are Spirituall that is to say as they are clothed and apparelled with goodnesse of the Supernaturall end according to Christs owne institution How then can that be true which you charge Navarrus to affirme that Papall power is Layick and Temporall howsoever not meerly Layick and Temporall and that as Pope hee may intrude himselfe into the exercising of Temporall Dominion and Jurisdiction But with you Hetrodox it is no new or strange thing as oft it hath beene knowne and seene to cite Authors for some opinion who teach a cleare contrary Doctrine 4. You stand for the Popes Kingdome to be a Kingdome that governes all Kingdomes Then belike he steers the huge Argonfie of the grand Signior and of the mighty Tartarian and the most potent Monarch of China too But I believe he dares not once presume to set his foote in any of their powerfull Aâ—kes No no the Pope is no Governour of Kingdomes but Pastor of Christians it is more then high time to pull up by the rootes all such thoughts purposes and projects to sway the Scepter of secular Princes Kings and States Non est Discipulus super Magistrum the Disciple is not above his Master nor the servant above his Lord. 5. Item You make the chiefe Bishop a God as God was tâ—ken of the old Philosophers that is to be causa prima the first cause of things For thus you say As God governes all Kingdomes and takes not away from Kings the Kingdoms ruled and governed by his omnipotentarme so the Pope governs all Kingdomes and takes them not away from the true owners to whom in right and reason they belong so far exorbitant is this your comparison and openeth so great so wide a gate unto Idolatry that I cannot I dare not passe by the gate thereof but with a warie foote What Is the Pope then omnipotent omniscient Vbique per Essentiam praesentiam potentiam Is his Holinesse every where by his Essence by his presence by his power for as much as he immediately governes all Kingdomes as they are governed by God himselfe I know not Hetrodox how it is possible that so vast so exorbitant imaginations have taken roote in the Intellectuall Facultie of any Christian man 6. Againe to give but not to grant you thus much I mean to give it for courtesie sake though not grant it for a veritie that our Popes governe all Temporall and Earthly Kingdomes as they are governed by God himselfe yet all the learned know that God suffers the second causes to work and himselfe is only concurrent with all their operations with all that are good he concurres Positivè by position with all that are evill Permissivè by permission Then for example when the operations of the most Christian King are good wherefore should the Pope not suffer him still to be in such action Here I would have no man step in with a frivolous answer the Pope will not suffâ—r the King so to doe because the Pope is perswaded the Kings operations are wicked and therefore hee will take order for the remedy and reformation thereof For if the Pope should undertake the attempt and enterprise to reforme all wicked men first he should be nothing like unto God who many times permits wicked men to range in the waies of their own will
Expressis verbis by perspicuous termes or by Gods Law Naturall or in any other manner To all such doubtlesse any former Epithets will be found agreeable The first of our three Races is now runne let us rest for some few minutes if you please that wee may gather the more breadth for the better performing of the other two courses The sixth daies Conference upon the seventh Proposition Orthodox SO long as the Signorie of Venice is not culpable and commits no sinne howsoever the State stands now and lyes under the Censure of Excommunication by the high Bishop or Pope Paulus V. in the Breve of Censures published by his Holinesse howsoever the sacred Temples and holy places lye now under the Interdict neverthelesse the sentence of our holy Father the Pope is of no force to no effect and as no Sentence First by the Law positive because the order prescribed by the Canon hath not been observed duly and Canonically as we read in the manifest Secondly by the Law Divine Can. de Senten Excom in 6. because all Authority to Excommunicate stands tyed to a condition with a Si peccaverit c. if thy Brother sinne against thee c. So that where no sinne there no place for Excommunication and the sentence fulminated against one that hath not sinned Nulla est ex defectu materiae becomes no Sentence for Defect or want of due matter And I would not have any mans wit so blasted to thinke that howsoever the Signorie hath not offended as hath beene proved nor doth offend in holding their owne Right neverthelesse they offend in shewing their disobedience to the Pope and persisting in their opinion For Constancie in a good opinion is not Obstinacie and he that hath not offended should not be termed obstinate or disobedient For as hee that keepes the Law doth a most holy and meritorious worke so he that is not obedient in matters which cannot be commanded or enjoyned him to performe commits not any sinne or offence at all Hetrodox In this Proposition you are bold to affirme two things That our holy Fathers Excommunication and Interdict is a sentence of Nullity both by positive Law and also by the Law of God By positive Law because the order prescribed by the Canon hath not been observed in this case A notorious falsitie For in the Title De Sententia Excommunicationis in 6. there be only three Canons by which the Judiciarie order is determined In the first Chapter the sentence is commanded to be put down in Scriptis in the Chapter Solet it is commanded that no man shall be Excommunicated after hee hath appealed In the Chapter Statuimus it is commanded that no man shall be excommunicated except first he be Canonically thereof advertised by three Admonitions And albeit every Defect makes not a sentence to be no sentence yet in the present case we need not flie unto this excuse For the sentence of our Lord the Pope was given in Scriptis and with all the three Admonitions of eight daies for the first Terme eight for the second and eight for the third No Appeale interposed nor could be interposed where the Pope is the Supream Judge So that with all exactnesse the Judiciarie Order commanded by the Canons De Sententia Excommunicationis in 6. hath beene duely observed it was your part Orthodox to produce the Canon and to demonstrate in which of these three points it hath not been observed but alas you could not as it seemes and thinking it sufficient by like to beguile the ignorant you passe it onely in generall termes By the Law of God the sentence of our Lord the Pope you say is without any validity and no sentence for want of matter because Excommunication is a punishment which may not be inflicted without some precedent offence and for as much as the Signorie of Venice hath not offended the Lords of that State could not be subject unto Excommunication This hath beene answered before where I have shewed how the Signorie hath most grievously offended First In making unjust Lawes against the Church and in committing Ecclesiasticall persons to prison then againe in being disobedient unto the high Bishop and refusing to be reformed by his Holinesse in their evill waies But were it a matter of doubt whether the Signorie hath sinned or no it is most certaine that doubt is to be put out of doubt and resolved not by the judgement of the Signorie but of our holy Father the Pope the Supreame Judge in Christs roome and place If the Pope then be the Judge over sinne which point you have confessed in the fourth Proposition then the Pope and none but he hath power to discerne whether a thing be sin or no sin that 's his proper office A figure whereof we have in the old Testament where it was the Priests office to judge whether one was infected with Leprosie or free from that infection Now the Pope the Priest of Priests hath judged the Duke of Venice to have grievously sinned to be all-over-run with a Spirituall Leprosie of great Malignitie and Contagion whereupon 〈◊〉 Holinesse by sentence of Excommunication hath separated the Duke from the company and fellowship of the Faithfull How can the Duke be defended or excused in this case It is true that constancie in a good opinion is not as you have well said to be counted and termed obstinacie provided the question remaine and long in a doubtfull ballance But when the question is once judged and ended by the Judge to whom all men are bound to give credit as in this case then the opinion of all such as maintaine the cause of the Venetian Signorie is no longer an opinion but an Errour and then constancy therein is obstinacie Orthodox Your oppositions to this our seventh Proposition have been effectually reproved before as touching matter of Right It onely remaines to give your Errours by tale Bona Emphytheotica et ager Emphytheoticus i.e. vestigalis macer Nam Emphytensis est genus locationis quo inculti ac deserti agri colono alicui eâ lege in perpetuum locantur et quamdiu praestituta merces solvatur nunquam ad Dominum revertatur in your Exposition touching matter of Fact 1. Before his Holinesse denounced sentence against the Lords of Venice he Canonically gave them Admonition you say three severall times I would faine know how that can be when his first Monitorie was no Monitorie but onely a Declaratorie and a Definitive Sentence without any Monitorie at all going before Againe in the third Monitorie the cause of Emphytheaticals as they are termed in Rome not once mentioned in the first and second Monitorie is interserted This one point were there none other drawes the sentence into Nullitie Besides when Monitories are no Monitories but sentences like those of his Holinesse for want of Juridicall citation they have that inexcusable Defect which makes every cause void every Sentence no Sentence But of this matter I
Quarta Excommunicatio est nulla sive invalida quando continet intolerabilem Errorem quem habet illa quae datur contra aliquem ex quo rectè aliquid fecit Excommunication is none or of no force when it containes an intollerable errour and such is that Excommunicatory Censure which is denounced or given against any man for well-doing or after he hath executed some good Act or done some good work 5 Quinta Excommunicatio invalida seu nulla nihil operatur in foro interiori sive exteriori c. Invalide or no Excommunication workes none effect neither in the inward nor in the outward Court save that it bindes the excommunicate person to the observation thereof untill the people may be really perswaded of the nullity thereof for the avoyding of scandall 6. Sexta Idem dicendum de suspensione interdicto nullo quod dictum est de Excommunicatione nullâ The same is to bee pronounced of invalid suspensions and interdicts that hath been asserted and averred of invalide Excommunications Now the Venetian Prince having commanded an Action of vertue namely the non-observing of a non-interdict quod vergebat in periculum Divini cultus Religionis which tended to the manifest hazzard and danger of Gods Worship and Religion Surely they have not sinned but have observed the Doctrine of Navarrus to a haire 18. None of us deny the Pope or chiefe Bishop to be the Vicar of our Father in Heaven for Spirituall Causes but wee say moreover The Prince is the Father of the People in Temporall Causes and withall That as the Son hath reason to disobey the Father who seekes to deprive him of his own particular goods and portions to him appropiated either by reason of Dowry or otherwise Even so the Prince ought not to obey the Bishop howsoever he goes for the Princes Father in Spirituals when the Bishop pretends to deprive him of his Temporall Goods and Jurisdiction 19. The Lord Cardinall Baronius hath assumed and presumed the Venetian Republic to be decrepit and in that consideration a blind Buzzard or dreaming Dotard And you Hetrod ox from the Lord Cardinall Bellarmine have learned on the contrary to call the Venetian Republic so young a Child as it hath need of Paedagogues I tell you Sir the Republic is not decreipt or an old fool much lesse a child to be taught his Primmer she is the Queen of Cities a Prince of perfect age When this Prince collective determines any matter case or law they do it with great and singular wisdome they alwayes aime at Justice and Piety they have no need of any to teach them lessons in Temporall Affaires or in the Government of their States and Subjects they are over all Christendome not only reputed but also renowned for most wise and prudent Senators What is written by some Authors on their behalfe is written by the said Authors of their own simple and voluntary accord in defence of the truth and the just cause of their Prince 20. You confound the name of Paedagogue with the name of Doctor whereas by Cicero in his Dialogue de Amicitiâ they are distinguished For the name of Paedagogue notes a servile exercise of such as attend and wait upon Children the name oâ— Doctor signifies a liberal and noble exercise in teaching Ex Cathedrâ out of the Doctors Chaire I know not one Paedagogue that hath set pen to paper in the defence of the Republics cause but many famous and eminent Doctors with whole Colledges have taken the paines to write in their favour 21. The example of King Boneslaus is nothing apt nor accommodated to the case King Boneslaus was an impious and most wicked person infamous and notorious for many fowle crimes The Republic is a Pack if I may so speak or an united and uniform knot of pious and Catholic Senators great lovers of Justice and renowned Zelators of Religion 22. If all that have not observed the Interdict and have prohibited the observation thereof should have so miserably ended their dayes as King Boneslaus dyed or should have been so unhappily poysoned as Bavarus was not dying of any sudden death as you pretend I wonder how the most Christian Kings Philip the Faire and Lewis XII could escape the like miserable deaths and unfortunate ends nay how their whole Kingdome did not perish in like manner Now that not falling out in the same unfortunate manner it is a manifest signe That all those by whom the observation of the Interdict is inhibited or not observed in their own persons shall not be taken away by the like miserable and sudden death 23. Now I come to the conclusion of this my Defence with two other Examples of Popes for as much as you Hetrodox have been pleased to gall us as you imagine with two Examples of Temporall Princes what can you say for Iohn XII Hee excommunicated the Bishops by whom his cause had been discussed by Commission from Otho 1. Emperour The Bishops did not obey they declared the Nullity of his Excommunicatory Sentence Have you read at any time that any one of that Councell perished by a miserable death And have you not read how the said Pope came to a death so infamous and so miserable that I think it neither fit nor lawful to story the same first wandring no lesse then Boneslaus for some space of time thorow the wild woods with wild and savage Beasts The other Example is of Pope Boniface VIII He excommunicated the French King Philip the Faire and interdicted his whole Kingdom the King scorned the Popes Bull or Breve of Excommunication The Pope thereat â—o stampt and storm'd so far took pepper in the nose for a medicine that it burnt up and consumed his Entrails as may be supposed his Bowels and his very Heart so that he dyed at last a miserable death of whom Platina thus Moritur hoc modo c. Thus dyed Boniface He whose care and study was to tame and trample upon Emperours Kings Princes Nations and People with terrors rather then to teach them holy Religion He that presumed to give to take away Kingdoms at his discretion He that went to drive men out of their habitations and to bring them back again He that above measure thirsted after gold and treasure ransacking the Coffers and ripping up the Bowels of all Exchequers Let all Princes therefore learn by his example as well secular as religious Princes not proudly and contumeliously as this man of whom now wee speak to rule their Clergy and People but in a holy and modest manner of Government as Christ and his Disciples with all other his true and faithfull followers ruled and chuse to be loved of the people rather then feared which will justly be the down fall and break-neck of all tyrannous Princes So that by these two Examples you may see Hetrodox that your Argument ab exâ—mplâ— drawn by name from the example of Boneslaus and Bavarus is of no force but weak as
himselfe to follow another tract and better path Now in this large discourse diverse things occurre and concurre worthy of observation in favour of the point which I here maintaine The first by name that Emanuel is honourably commended and highly praised by Nicetas for a most noble and pious Prince The next is that for the reformation of monasticall discipline he revoked the repealed and annulled Act or law of Nicephorus which was not done out of passion or out of any envious or venemous humour against the Church but only out of a religious disposition to worke and effect a timely reformation of the Church The third is that Emanuel renewed the law of Nicephorus annulled by Basilius because Nicephorus was directed guided by most prudent consideration to enact and establish the same Law which because Emanuel did set on the own first feet again therefore Nicetas gives him the honourable adjunct and stile of Cordatus Imperator an Emperour of an upright right couragious and right sincere heart The fourth is that never any man opened his mouth to complaine or to declare himselfe grieved-or offended against Emanuel for the re-establishment of the said law The last is that as well by this Act of Emanuel as by the Acts of Nicephorus Basilius and other christian Princes it is lawfull and free for christian Princes as it is now practised in act at pleasure to establish and re-establish the like lawes and that immunities whether passant or dormant do grow and flow Ex privilegio principum from the sweet spring of Princely priviledges I passe over diverse matters Hetrodox as namely that you pick out of Authors and scrape any thing together which may but seem to make for your purpose and omit or leave out all that makes against your cause as also that you build and worke upon texts of no weight or importance upon priviledges cassed and annulled in like manner that you disclaime and reject authorities of the most noble and christian Emperours their most holy Lawes and priviledges never yet annulled neither by custome nor by any superior power Hetrod I feare Orthodox you will breake your wind or at least runne your selfe out of breath in this argument if you may be suffered to have your own swinge I will therefore take down and coole the heate of your discourse as it were with a sprinkling or two of holy water Answer but one example and you shall give me more then meane satisfaction when certain Processes were preferred and presented on a time to Constantine the Great against sundry ecclesiasticall persons what was his gracious and Princely response Vos à nemine c. No mortall man hath power to judge you of the Church but you are to be judged by God alone Orthod What aime you to inferre upon this one instance Hetrod That Clerics or Churchmen are not subject unto secular Princes Orthod You shoot both too farre short and too farre wide of your marke That Princely response was only a kind of excesse wherein the noble Emperour endeavoured to demonstrate an over-weight of his exceeding benignity and piety towards the Church the gracious eye of his internall judgment lookt another way then you seeke to inferre For if that response had been true and according to his inward perswasion or beliefe thereof then Clerics without all question might not be judged by their own Prelates For Constantine there saith Ad Dei judicium reservamini you Churchmen are exempted by the benefit of reservation to be judged by God alone which doubtlesse is a blurre to your learning and a grosse Non sequitur to inferre Hetrod Beleeve me Orthodox you labour to crown the great Emperour Constantine with garlands of homely praises and perfumes when to make him renowned and glorious for his benignity and piety you paint him forth as a masqued and cunning lyar But Sir to the end you may plainly see in what heighth and elevation of the Pole Hist Eccl. lib. 10. c. 2. the words of Constantine deserve to be placed have patience whiles I turne word for word what Ruffinus hath recorded Constantine said to the Bishops Almighty God hath given you the Order of Priesthood with power to judge us Princes wee therefore of right are to be judged of you Priests and you may not here below be judged of men stay then wait and expect in suites commenced by men of your own Coat and Order the time when you shall be judged by God alone keepe your suites to be tryed quarrels to be decided at his Barre are you not given to us of God as Gods on earth Is it not a great and a shamefull fault for men to 〈◊〉 and to judge their Gods Is not he alone to hold the great assizes for their tryals of whom it is written Deus stetit c. God standeth in the Assembly of Gods Where it is to be noted that as temporall and secular Princes are Gods in respect of their People so Priests are Gods in respect of Laics though they be Princes as Constantine sticks not here to affirme and upon this foundation the great Emperour very safely grounds his conclusion that Priests have power to judge Emperours but Emperours have no power at all to judge Priests Now if this great Emperour of the world hath acknowledged that he held Priests as in the ranke of Gods that he could be no judge of Priests and yet might himselfe be judged by Priests how much more ought other inferior Princes and States confesse the same in word and acknowledge the same in fact Nor doth it follow in right consequence that Priests cannot be judged by their own Prelates but rather the contrary for ever and at all times the superior judgeth in Gods name from whom he receiveth authority and power Nay rather God himselfe then sitteth in judgement by the mouth of his lawfull Minister for the exercise of judgement So when a Bishop judgeth some inferior Ecclesiastic or when the Pope himselfe judgeth a Bishop it is God that judgeth by the Ministery or mediate worke of his appointed and approved servant This was therefore great Constantines beliefe and perswasion that Bishops who in respect of Laics are Gods cannot be judged by Laics who are but men and not Gods in respect of Priests Again that it resteth in God alone to judge Clerics viz. by the interposition or mediat act of his great Vicar as in like sort secular Princes who in respect of their secular People and Subjects are Gods cannot be judged by the said People being but private persons but only by God by meanes of his Vicar the Priest who in that regard is called God to wit in regard of the secular Prince In that only sence the Lord said to Moses I have made thee Pharaohs God namely to judge to chastise that cruell King with my rodds my sore judgements And for some good proofe of Constantines beliefe that power to judge censure Bishops is in the hand of the Pope
other untruth be it heresie or errour howsoever I am directly of this minde it is flat heresie to stand upon termes of contradiction against so cleer a text of the divine Apostle Paul And lastly know this Hetrodox that man is a spider who weaves a spiders web to catch flies and poysons the springs or fountains of wholsome doctrine with venome of his own corrupt and false exposition know you moreover that Orthodox who now like the Bee sucks from the sweet flowers of Saints and chiefe pillars of the Church the most delicious honey of truth will never take pepper in the nose to heare himselfe blamâ—d on this wise sometimes your sweet honie Hetrodox turnes to bitter wormwood yea to deadly poyson to make false and erroneous doctrine burst all her bowels Hetrod Well Sir have you any more gall to spit up any more to say in confirmation of your first Proposition Orthod It is not I that will say the rest but Paul the Apostle who thus proceeds and subjoynes in the sacred text Rom. 13. Whosoever he be that resists the Power the same resists the ordinance of God here is clearly to be seen the authority of secular Princes to make lawes in any matter cause or subject whatsoever lawes obligatory to bind all degrees and sorts of persons Quicunque whosoever he be c. in full conformity to the words of God himselfe speaking thus in his own person By me Kings raign and law-givers or Princes decree justice From hence have sprung as from the prime roote many lawes in the Code made by Iustinian and Theodosius most christian Emperours concerning Ecclesiasticall persons their lands goods c. All which lawes the Apostle commands to be obeyed without resistance for so much as all that resist shall purchase and receive to themselves condemnation they runne and tumble into mortall sinne wherein if they shall finally depart out of the body without repentance in this life they shall be adjudged and condemned to eternall flames of hell Hetrod Where did Paul ever write or witnesse That secular princes have power to make Lawes in all matters and causes Lawes to bind all sorts conditions and qualities of people what shall Princes make Lawes for the manner and forme of saying Masse for binding Laics to say Masse and to make the vow of chastity for binding Priests to marry and instead of a Breviarie and a Portuis to weare a Fauchion a Skaine or a Sword Shall not all these be bound to shew and performe obedience if Princes have authority to make Lawes in all causes and in all matters yea binding Lawes for all persons iâ— when Lawes were enacted by Heathen or unbeleeving Princes that all people Nations Tribes and Kindreds should renounce Christ and offer sacrifice to Idols were they not bound then under the penalty of mortall sinne to obey the said Heathenish Lawes and Ordinances They were doubtlesse to my understanding though all Princes then were Infidels when Paul commanded the said obedience to Princes And yet Orthodox according to your new interpretation from Pauls precept or Apostolicall Canon it is forsooth to be collected That secular Princes have authority from God to make Lawes in all matters and lawes to bind all persons It may seem your wits are gone on wool-gathering that you perceive not how many errours flow from the source of your last speech and passage And yet you stick not here to come in with a strange and uncouth addition That your doctrine hath due and requisite conformity with King Solomons verdict in the Proverbs not discerning that Solomon there nips your new device in the crown or rather strikes it stone dead For he there bringing in the wisdome of God using these words viz. By me Kings raigne and Princes or Law-makers decree justice doth manifestly declare and shew That none but just Lawes doe proceed from the wisdome of God and that other Lawes many times enacted by Princes in matters which nothing at all concerne their dignities and imperiall places or established against persons not subject unto their secular authority or otherwise unjust lawes are but like puddle waters which run from the corrupt fountaine of their owne braine so not flowing from the spring which riseth in Gods bosome neither are the said lawes approved of Gods divine wisdome To the other addition which you make that Iustinian and Theodosius enacted lawes concerning ecclesiastical persons their goods lands Church-government or discipline it hath been already answered that in such their practise they exceeded the termes and limits of their power and whereas you affirme the Apostle commands obedience to their lawes you affirm a most large and no lesse manifest untruth or falshood for the Apostle there speaks in generall that he would have Subjects obedient to their superiors and whereas a litle after the Apostle brings in the example of secular Princes he speaks of Princes who in his time were Infidels and is not so to be taken or understood as if he did advise and teach Christians to obey such Princes I mean in lawes that concern the service and worship of God or the discipline of his Church but in civill and politick lawes alone and in temporall matters which lawes it was necessary then for christians to obey for the preservation of peace and unity as also to the end the Gentiles might not be carryed away with mis-credence or false beliefe and perswasion that Christian lawes or the lawes of Christ are opposite and repugnant unto the rules and reasons of civill or State government Orthod You thought my wits were gone a gadding and now I think your mouth runs over but I will stop the Fistula or the running issue of your mouth with a tent or two My meaning is this That Princes have power to make Lawes in all causes and matters Temporall but onely for the Public and Civill good and benefit provided alwayes their Lawes be just For it is alwayes presupposed That obedience is never due nisi justa praecipienti but when the Prince or State or other Superiors command things just and lawfull So that your late Consequences grow from a certaine misprision or wrong conception of my project purpose position and proofes For when I teach That a Temporall prince hath power to make Lawes in any or in all cases I meane such Lawes and such cases as are just conformable and agreeable to his power as also after the pattern and practice of his predecessors and other just Princes This was ever my meaning As for your exception taken to Justinians Lawes and those of Theodosius it shall suffice thus to answer in a word Their Lawes are sacred and have ever been reputed irreprehensible they were contrived and penned partly upon temporall grounds and subjects partly for the more strict observance of spirituall Canons and Orders partly for public benefit and yet did never any chiefe Bishop or High priest so kick and spurne against either of their Lawes as you Hetrodox have now
done with much disgrace and contempt As to that which you say touching the cause for which Christian subjects were bound to obey Infidel and unbeleeving Princes I will content my selfe to make use of Saint Pauls words for a sufficient and full answer thereunto You must be subject and obedient not onely because of wrath but also for conscience sake Rom. 13. Item Whosoever resists the power he resists the ordinance of God and they that resist shall receive to themselves condemnation In so cleere Texts and passages of Scripture what need you or any other fly to the shifts of any new expositions with danger to fall into infidelity or mis-creance and notorious Heresie especially when Chrysostome hath decided the matter before by so strong an argument from the lesse to the greater in this forme If the Apostle enjoyneth obedience to Heathen and miscreant Magistrates how much more ought we to performe and yeeld all due obedience unto beleeving and godly princes Thus Chrysostome Hetrod The Sunne is now declined many degrees and now ready to depart out of our Horizon Are you Orthodox as neere to the period of your first dayes labour and taske as the Sunne is to the full end of his Journall or Diurnall motion Orthod I am indeed as you shall presently perceive Saint Paul commands all men to pay Tribute unto their lawfull Soveraigne because he that dischargeth such duty makes good payment unto God himselfe Give Tribute unto whom you owe Tribute Custome unto whom Custome fâ—r they are the Ministers of God This passage is expounded by the Angelicall Doctor the great Master of Divines and onely Sunne of the Catholic School This great Clark saith you know full well That in case Clerics be free and exempt from payment of Tribute doubtlesse they are endowed with such freedome and exemption not by Gods Law as by divers it is thought and taught but by speciall grace and priviledge of secular princes who beare not Gladium the sword for nought seeing they are Gods Ministers to take vengeance c. See you not here the authority of Secular Princes to punish poena sanguinâ—â— with losse of blood or with corporall death Now the same authority Ecclesiasticall Prelats have not from God and therefore when they have once degraded a Cleric for some capitall crime or scandalous and notorious offence whereby they declare the party criminall to be devested of his Clericall degree and holy orders they take no course nor care at all for any further proceeding to his execution but for punishment by death tradunt brachio saeculari they refer and poast him over to the secular power And to the end it might not be conceived that Pauls words are not uttered by way of precept but onely of counsell Behold to make good his assertion he strengthens the same words with a very substantiall sinew Ideo necessitate c. Wherefore ye must be subject not onely because of wrath but also for conscience sake So then we are bound by Saint Pauls holy doctrine as it were with a forcible chaine of necessity O portet ye must to serve and obey the secular Prince in all such matters and cases as have been discussed and insisted on before Hetrod How now Orthodox play the lazie Poet Faile flag and faint in the last Act of your first dayes Conference Coyne or at least corrupt Scripture at your pleasure and for your purpose where find you this word in S. Paul For they are the Ministers of God Ad tributa to receive tribute or this word For he is the Minister of God Ad vindictam to take vengeance The sense of the latter words I grant is found in the Apostles Text but whensoever men cite the words of Scripture which indeed are Gods owne words it is but a sacrilegious trick to chop and change the right words especially when the genuine sense proclaimes it selfe to every meane capacity For example in the first sentence For they are the Ministers of God to receive tribute Paul doth not say That Princes are Gods Ministers to receive tribute but rather by all meanes to provide for and to procure the tranquility of the whole body So the words are expounded by Chrysostome and other holy Fathers Ministri Dei sunt in hoc ipsum servientes For they are the Ministers of God to the very same purpose that is to provide for and to procure the tranquillity of Gods people Yea the same Thomas also whom you so highly magnifie and upon whose testimony as you think and suppose you build so sure is of the very same judgement or mind For he reckons and ranks Tributes in the nature of Salaries given to Princes for the laborious taske surmounting the twelve labours of Hercules which they daily undertake for the good and happy government of their Subjects And who doth not know that no salarie can be given to God Princes therefore are not Gods Ministers Ad tributa to receive tribute but rather to bring their subjects unto a statâ— of blessednesse under a good and happy government Againe touching Thomas Aquinas whom you quote for another purpose namely to prove That Ecclesiasticks have been freed from payment of tribute by the most gracious charters and speciall priviledges of Princes it is in good sooth the assertion of Thomas and conformable to Historicall Truth But you impose and father upon Thomas more then he sets downe to wit That Ecclesiasticks are not so endowed and priviledged by Gods Law whereas Thomas affirmâ— the cleane contrary For thus he saith Princes by gracious priviledges have exempted Ecclesiastics from tribute because it stands and agrees well with naturall equity He means that Princes in so doing confirme the law of nature which doubtlesse is the Law of God To be short whereas in your last point you deny the power of the Church to punish by death I know not where you have pulled that wild and sowre grape except it be in the Desarts of certaine Hereticks as the Valdâ—nses Hussites Marsilius of Padua or the like who denyed the Church to have any right unto the power of both swords True it is the Church never strikes with any materiall sword nor doth punish criminall malefactors by death But wherefore what is it because the Church wants power in that case No verily but because it seems neither convenient nor suitable to Ecclesiasticall meeknesse in regard whereof the Church is well contented and apayed to leave all such criminall offenders in the hand of secular justice Vterque igitur Ecclesia c. Both swords therefore the spirituâ—ll and the maâ—eriall of right belong to the Church the materiall to be unsheathed in the Churches defence the spirituall to be drawn by the Churches arme the spirituall to be used by the Priest the materiall by the Soldier but yet when the Priest holds up his finger and the Emperour commands or sends out warrant for the purpose This doctrine of S. Bernard was afterward made authenticall by Pope
forbeare to speake any more presupposing it is most evident as a matter tossed from one to another in every Venetians mouth Howbeit I build not so much upon this foundation because I have this answer of Rome at my fingers ends When the Pope doth any thing against the Canons that is the Pope is Supra Canones he is above the Canons How this can hold water or weight with truth I leave to your consideration For that Canon is grounded upon the order of Brotherly correction prescribed by our Saviour himselfe the alteration of whose Ordinance is too far out of the Popes reach 2. The â—â—â—â—â—ce of our holy Father the Pope you say is not a void 〈◊〉 â—â—nce of nullified by Gods Law and that you have sufficiently proved the Venetian Lords have most grievously sinned I doe not deny that you have in Affirmation charged the noble Lords with I wor not what grievous offences But Sir that you have made any Demonstration of your bold Assertion according to your stout pretence that you must give me leave to deny againe and againe Will you have my Reason It is indemonstrable that such as goe not against any Law doe fall into sin That such as tooth and naile doe stand for defence of their ancient Rights and Possessions doe fall into sinne That such as obey God rather then men fall into sinne That such as resist violence doe fall into sinne Such are the lawfull and laudable Actions of the Venetian Lords and therefore they doe not fall into sinne as to effectuall purpose hath beene declared before Whereas your oppositions against this Doctrine have not one myte of probability no not in appearance much lesse of certainty or Demonstration as you pretend 3. I have confessed the Popes power extends unto Spirituall matters and is over sinne you hereupon doe inferre that the Pope hath power at all times and in all causes to judge what is a sin and what is no sin This your opinion smels of Durandus his Chimnie and smoke an opinion of all men reproved but your opinion is much worse For Durandus doth not professe that in every sin we should stand to the Popes judgement whether it be sin or no for that is not necessary He onely affirmes the Pope hath power to judge all Christian People ratione peccati for sinne at his pleasure and to draw all matters into his Court Whereas you Hetrodox passe a whole degree further For if the Pope shall judge an action of vertue to be sin though I be never so certain it is no sin you forsooth will have the Popes judgement shall make it sinne This perswasion containes intolerable Errors 1. The first whereof is That in judiciis Facti in judgements of the Fact our holy Fathers judgement is infallible False for in cases of the Fact he may erre and hath oftentimes erred So teach all the Doctors in the Fact of Pope Stephen and Pope Pâ—â—â—osus with other Popes of whom Platina writes This Doctrine is held for most certain in the Church The Pope then may erre in affirming a thing to be sin which is no sin so the Pope can be no infallible Judge 2. The second Howsoever in a doubtfull case whether a thing be sin or no recourse may be had to the Popes Judgment or some other Doctors yet in cases which are certain and certainly known such recourse to the Pope for his Judgement is not necessary For example I know for certaine it is a sin to steale such a rich Jewell or such a piece of Plate again I know for certain it is a vertue to defend my Life my Land my Leases and to serve God Shall I give credit and faith to the Pope â—he should affirme the contrary to that whereof I am so certain and no way doubtfull Those Authors who grant all Authority to the Pope and judgement between Leprosie and Leprosie that is whether it be Leprosie or no Leprosie doe grant it only in doubtfull bâ—â— not in certain cases For in matters cleer evident and certain either the light of Nature or the sacred Scripture or the common estimation and account of all men is unto us a Law vox Populi vox Dei 3. That in the present case and assures of the Venetian Lords to make the world believe they sin it is all sufficient for the Pope to speake the word and to say the Venetian Lords doe grievously offend and transgresse the Lawes of God of the Pope of the Church c. Whereas you know Hetrodox it is the perverse the froward the wicked intention that makes a thing to be fin according to that of Bernard Tolle voluntatem Infernus non erit if a man be cleare from all wicked intention he shall be cleere and free from Hell-fire for ever because according to St. Augustine Peccatum est dictum factum concupitum contra legem sinne must be something spoken or acted or coveted against the Law of God If one therefore hath a good intention he goeth not against Gods Law Howsoever the Pope shall say he sinnes yet he sinnes not which according to all the Doctors as hath been said must be understood in re certâ Now because the Venetian Lords are certainly assured they have not sinned or offended and carry a cleer conscience fâ—â—e from any sinister and evill intention this knowledge is their sufficient warrant without running to the Pope for his judgement in such a cause especially wherein his Holinesse makes himselfe both Judge and Partie 4. The Supreame Judge you say hath judged the Duke of Venice to be covered all over with Leprosie from head to foot the Duke is therefore unclean all over Why good Sir the ancient Priest under the old Testament judged not of any mans Leprosie He onely said thou art an unclean Leper and therefore I will not suffer thee to enter into the Temple Now this judgement belongs to all Physitians and indeed to all other men when the Leprosie is manifestly seen and when every man knowes the partie to be smitten with Leprosie Besides if it be doubtfull whether a man be leprous or no men may runne to the Priest or goe to the Doctor to be certified of the truth But when a man is already assured and certain that he is not rotten but sound not run over with knots and knubs but of a cleer and smooth skin what needs he run or send his Vrine to the Physitian for the matter except his Phantasticon be like unto the immaginative apprehension of one who being Infra limites sanitatis as Physitians use to speake as whole as a Fish when his Physitian told him he had an Ague in his Phantasie so deepely made impressions of the Physitians words that he was in a trice surprised really of an Ague and thereof soone dyed To be short If Christ Jesus the Supreame Judge indeed who cannot erre should say contrary to the judgement and assured knowledge of the Venetian Lords you sin in these