as the Clergy if they are legally deputed to it nay a Woman as Gerson speaks and the Abbesses and Prioresses do at this Day As for Visitations The Surrogate only sends to the Clergy to meet at such a place where presentments are taken and excesses enquired after which are meerly Temporal Acts though the Persons enquired of be some of them Spiritual Therefore when Redoanus and any other Canonists make Visitations in their large sense and acceptation or abuse rather of the word Spiritual it is because the Archdeacon is bound to Preach and give Spiritual Instructions to his Clergy and others as the pontificial forms for Visitations of which there are very many extant do enjoyn from which part a Layman is excluded As for Excommunication and Absolution it is well known that Laymen do not use them but leave them to the Clergy and though they are decreed by one they are pronounced and made valid by the other And how great complaints there have been in this Nation of the contrary usage is well known and that the Canons of 40 which shew the sense of the Church though they were not Confirmed utterly debar Laymen from any such Power Neither can I hear that at this present any Layman throughout England taketh upon him to Excommunicate without one in Orders to assist him And I am sure if he cannot bind he cannot loose For ejus est solvere cujus est ligare Those censures indeed are Spiritual when used in foro interno binding and loosing the Penitent upon Confession and Repentance and so are part of the Sacerdotal Power perswasive not compulsive But when exercised in foro contentioso they are granted by Bellarmine himself to be Temporal and coactive and it is amply proved by Bishop Carlton in his Book of Jurisdiction and by Bishop Andrews in his Tortura Torti Potestas Excommunicationis pertinet ad Jurisdictionem fori exterioris Marsilius Patavinus in his Defensor Pacis who Writ 1324 is positively for it Ab Officio principatus sive contentiosae Jurisdictionis regiminis seu coactivi judicii cujuslibet in hoc saeculo Christus seipsum Apostolos exclusit excludere voluit Which Jacobus de Almain approves reciting this passage of Marsilius The Archbishop of Spalato is express Potestatem Ecclesiae propriam totam esse merè Spiritualem And saith That St. Chrysostom St. Ambrose Bernard and Ferus agree in this Ab Ecclesiastico Rectore potestatem omnem imperatoriam coactivam executivam auferunt Nor can it be otherwise for if it were jure divino it must rest in themselves to whom it was imparted and could not be delegated and invested on others as Jurisdictions daily are I shall trouble the Reader with but Two or Three Authorities more and one is Franciscus de plateae among the Tractatus illustrium Nota tamen secundum Gul. quod cum paenae non sint extendendae ille qui Simoniacè suscipit aliquem ordinem sit suspensus quoad ea quae sunt ordinis non tamen est suspensus quoad ea quae sunt jurisdictionis unde si alias habeat Jurisdictionem tune habet potest suspendere Excommunicare ab Excommunicatione absolvere hujusmodi Covaracias saith the same and so doth Navarrus The highest sort of Simony is buying Orders and a Clerk is ipso facto suspended for it yet however though he be suspended from exercising or using his Orders he shall and may exercise Jurisdiction if he hath any And it is most certain and the communis opinio that no Simony soever shall hinder the convict from exercising his Jurisdiction as visiting censuring reforming correcting canonically or keeping Courts because the Jurisdiction is not by virtue of his Orders nor is it used by virtue of them being not a Divine but Humane Institution therefore executing the power of Jurisdiction shall never make him irregular as Navar and Covaracias and Infinite besides of the Canonists Observe Which demonstrates that their Opinion is that Jurisdiction is not Spiritual and from any supernatural Power And so transaction about it cannot be Simoniacal This is the plain consequence and deduction from that passage of Platea c. Which yet they seldom own in express terms For this is the Palladium of the Romish Church to make all they can Spiritual at least call it so Of this Grotius complained in his Oration at Amsterdam Restituta est imperii Romani dignitas sub alio titulo nempe Hierarchiae potestatis Spiritualis She contends to make every Cause Spiritual that so she may retain it and upon that pretence stamps a Nolimetangere upon all Matters that have any relation objective or Subjective to Religion This is her Diana and by this Fraud she gets her Livelyhood and hath enlarged her Phylacteries and made it Sacriledge for Temporal Princes to incroach upon her for all she toucheth is Holy and is not to be devoured by Dogs By this she hath erected a Monarchy and in the midst of Christian Kingdoms maintains a Power greater then she leaves to the Princes themselves and all by confounding the Ecclesiastical and Civil Power Temporal and Spiritual and engrossing both Powers to themselves of this Father Paul gives us a full and excellent account Constantine made a Decree that if either party litigant in Temporal Causes demanded the Episcopal Judgment the Cause should be immediately remitted him Here the Tribunal of the Bishops began to be a common pleading place having execution done by the Ministry of the Magistrate and to gain the Name of Episcopal Jurisdiction Episcopal Audience and such like The Emperor Valens did inlarge it who 365. gave the Bishops the care over all the Prizes of vendible things St. Augustine complained how troublesom it was to him Arcadius and Honorius restrained their Jurisdiction to Causes of Religion Justinian assigned them the Causes of Religion Ecclesiastical faults of the Clergy and divers voluntary Jurisdictions also over the Laity The Bishops became Counsellors to the Princes in the Western Empire and by the mixture of Spiritual and Temporal Charges caused their Jurisdictions to increase exceedingly He shews largely how they increas'd their Power over the Clergy and Laity pretending the Cause was Ecclesiastical or mixt and so leaving nothing to the Secular appropriated all to themselves making all devolve to themselves if the Magistrate will not or neglect to do justice This might be tolerable but not staying here they added that neither the Magistrate nor the Prince himself can meddle in any of these Causes which the Clergy had appropriated because Spiritual and of Spiritual things the Laicks are uncapable Though adopted by the Heavenly Father called Sons of God Brothers of Christ partakers of the Kingdom of Heaven made worthy of Divine Grace of Baptism and the Communion of the Flesh of Christ What other Spiritual things are there besides these 'T is false that causes appropriated to the Episcopal Judicature are Spiritual For all are either delicts or
sufficient to shew that whatsoever the Canons about this matter had been before the Statutes of H. 8. and Reformation of Religion that soon followed and the Statutes thereupon the nature of the crime and the whole current of the Laws about it are altered So that had this Office been given to a Clerk and not to a Layman yet as the Laws of England now are it could not have been Simony although the Lessee had exercised by virtue of his Deputation all those Functions and that Jurisdiction which the Ancient Canons called Spiritual For by many Statues made in the Reigns of H. 8. Ed. 6. and the Queen those Powers and Jurisdictions are made Temporal and so no longer of that nature which could render the Contract about them liable to the imputation of Simony which cannot be committed but when that which is sold is Spiritual The 26 H. 8. 1. Gives the Kings of this Realm full Power and Authority to Visit Redress Repress Reform Order Correct Restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended any Usage Custom Foreign Laws Foreign Authority Prescription to the contrary notwithstanding Also the 37 H. 8. 17. Declares the same Power to be in the King and to exercise all manner of Jurisdictions commonly called Ecclesiastical Jurisdiction And that the Power the Pope claimeth is directly repugnant to your Majesty of Supream Head of the Church and Prerogative Royal your Grace being a Layman and that the Archbishops Bishops Archdeacons c. have no manner of Jurisdiction Ecclesiastical but by under and from your Royal Majesty Some evil disposed Persons little regard the Proceedings and censures Ecclesiastical made by your Highness and Vicegerent Officials Commissaries Judges and Visitors being also Lay and Married Men and think them of little or none effect Forasmuch as your Majesty hath all Power by Scripture to hear and determine all manner of Causes Ecclesiastical and correct Vice and Sin whatsoever and to all such Persons as your Majesty shall appoint thereunto Be it Enacted That Doctors of Law may lawfully execute and exercise all manner of Jurisdiction Ecclesiastical and all censures and coertions Albeit they be Lay or Married Men. 1. Ed. 6. 2. Affirms all Authority of Jurisdiction Spiritual and Temporal is derived and deducted from the King's Majesty And all Courts Ecclesiastical are kept by no other Power or Authority either Foreign or within the Realm but by the Authority of his most Excellent Majesty All which Statutes among many more were repealed by Queen Mary being contrary to the Doctrine and Interest of the Romish Church who holds for the most part all these Jurisdictions to be of Divine Right and their censures to be Sacerdotal and the Power Ecclesiastical to be Ex sacrorum Canonum dispositione as the Popish Clergy speak in their submission to Cardinal Pool But the Reformed Protestants speak quite otherwise as Dr. Sanderson doth who saith of the Exterior Jurisdiction it is not from God but from the King wholly and entirely from him as the sole Fountain of all exterior Jurisdiction Spiritual or Temporal and consequently not of Divine Right So saith that Bishop for indeed if these Jurisdictions were of Divine Right they could not be deputed to others but the exercise must be limited to the Persons alone in whom such a right is inherent One Statute therefore saith well They are called Spiritual not that they are so it is Popery to Affirm it and a virtual denying the Kings Supremacy and renouncing the Oath of it and a Lopping from the Crown one of the principal Branches of its Prerogative preheminence in all Causes Which the King can never have if exterior Jurisdiction be Spiritual from God and the Pope not from the Crown The Book of an Anonymous Author called Episcopal Inheritance saith 't is a Popish Yenet to Affirm the Ecclesiastical Jurisdiction to be distinct from the Civil which Bellarmine asserts to set the Pope above Kings and to exempt the Clergy from the secular Powers In Queen Elizabeths Reign this Power is Affirmed to be in the Crown and 't is Enacted That all Spiritual or Ecclesiastical Power or Authority for the Visitation of the Ecclesiastical State c. Be united and annexed for ever to the Imperial Crown of this Realm But the Canons Affirm it to be in the Pope as a Spiritual Head and have therefore called it a Spiritual Power which being now by these Statutes reduced to its true Original must be no longer Spiritual but Temporal for the King hath it as a Layman saith the 37 H. 8. 17. And may invest Laymen with it who are no ways capable to give or receive it if it were Spiritual So that whatever it was heretofore when it came from Rome it is now Temporal and a part of the Kings Temporal Jurisdiction as Impropriate Parsonages and Vicarages become Temporal Things and Lay-fees now they are appropriate to Lay-men which before were Ecclesiastical and Spiritual And so the nature of such Jurisdictions as of the Benefices is altered with the alteration of the Tenure So it would have been Simony to have sold the Six and the Sixty Clerks places in Chancery when they were all Clergy Men or the Advocates and Proctors of the Commons when they were all bound to be Clerks which made Altissiodorensis and Aquinus say it was Simony for the Advocate to take Fees for pleading but now they are all Laymen there is no colour for such a censure There is yet remaining one and a very strong Argument that letting a Jurisdiction cannot be Simony by the Laws of England and it is this Neither that Canon of Yours nor that of Lateran in the body of the Canon Law nor any Gloss nor Commentator upon them is Law with us in England 'T is true that those Canons do not call it Simony nor punish it as Simony but if they did I Affirm they are nothing to the Case being not Law in our Church and so concerns us no more than the Laws of Coufutius or Japan 'T is almost unaccountable what Interest those Men would serve who have contended earnestly that all the Popes Laws are in force with us I know none but that of Doctors Commons who if they had so large a Field to expatiate in would have all Mens Estates and Reputations in their own Power But it is most certain that no part of the Canon Law is in force in England but what hath been received and used here not as the Popes Law but as made part of the Kings Ecclesiastical Laws by custom usage and consent Upon which conditions the Laws of all France might have been ours as well as those only of Oleron This is plain by our Statutes and it is a Premunire to defend and maintain those Canons or that shall
to stealing a Mule much less an Ass though all are Beasts of Burden and the first a part of him though the Immorality and Crime in stealing either of them be not at all different To all which I shall add one thing more That this Crime whatever it is yet is not under the title of Simony in the Canon Law but under the title immediately following which shews what Notion the Compilers of the Canon Law had of it and that they took it not to be Simony though it had been exercised by a Clerk at least not such a Simony as the former title treated of in the rigorous and strict signification of the Word but in a large extensive abusive signification only as they may call any Crime they please by that Name as Soto before cited to that purpose hath observed though indeed the Canons never call this so in any sense whatesoever but clearly intend it for another sort of Crime by placing it under another sort of Head which I may very rationally infer considering the accuracy and exactness used by the Compilers in ranging every thing under its proper Head by that shewing to us the true nature and formal difference of every thing there treated of And this is so true and material that Pope Greg. XIII in his Breve before the Body of the Canon Law saith Quae perperam posita erant suis locis restituta c. every thing is now restored to its proper place to which place this Crime is not restored if it be Simony which must argue either Neglect or Unskilfulness in the Compilers Crimes not to be objected where Popes and the best Canonist in the World are so far concerned And indeed who can believe that in Forty six Chapters which make up the Title Simony in the Decretals this should not have been inserted if it had belonged to that Classis rather than have crept in under the next Title of Nè prael vices where there are in all but Four Chapters and that which is treated of in the last no Man ever called Simony viz. Letting the Tythes to Farm for Seven Years which yet must be Simony if the Gloss saith true which would make it a kind or a sort of Simony something like it though not it Altera species Simoniae That is something the Canonists call so though it be not so For as the Church of Rome Usurps a Power to make every thing Lawful if she please by her Dispensing Power which began at Rome as Matth. Paris saith though never so flagitious so doth she on the contrary pretend the same Power to brand every Action with an infamous Name though it be in it self never so Innocent and Indifferent In this Case It is Lawful say her Canonists for a Bishops or an Archdeacons Chancellor or Official to put in a Surrogate it may be a Curate or a Vicar-choral never Educated to the Law and give him 10 lb a Year or but a Groat for an Oath and no other Salary as many have done who have these Jurisdictions and the Chancellors and Officials take all the rest allowing not a full Scandalous Tenth of the Profits to the Surrogate But it shall not be Lawful for an Archdeacon to make the Chancellor of the Diocess or any other well Qualified Learned Man his Surrogate the Archdeacon reserving to himself perhaps not neer half of the Profits and so allowing the Surrogate a plentiful and honorable Sallary Now let any Man Judge which of these two will be tempted to Oppression and Extortion he that executes the Office for 10 lb a Year or he who hath 80 or an 100 lb. But still there is a Quirk and Nicety in the Law which improved by the Chicanry of the Practisers and countenanced and even promoted by a whole Community of the profession can make Black White and White Black and find error where there is no fault and make that Criminal which most furthered the administration of Justice whereas their own scandalous and scanty both Salaries and Surrogates shall never be called into question This is the true Case I now treat of and it is and hath been confessed at the hearing of this Cause by the most violent in it That there is really and indeed no difference at all between the Archdeacons giving a Sallary to a Surrogate or his reserving part to himself only in one case the Archdeacon receives the Profits and divides them and in the other case the Surrogate doth it The thing is all one and comes to all one and either way the Archdeacon may have what he will himself and let his Surrogate have what part he assigns him The Surrogate in either case may be tempted to Extortion of Fees because he hath not the whole yet that is the only reason in the Canons why this we write of is forbid and must be a very weak one since they permit what is as pernitious or more than what they prohibit 2. The Second head is That it is not Simony by the Ecclesiastical Constitutions Injunctions or Canons of the Church of England A great part of which were Compiled and Glossed on by Lyndwood who follows the Order of the Pontifical Decretals making in all Five Books in the the last whereof is a Title of the same Name and in the same place as in the Decretals called Nè praelati vices wherein this Crime is treated of So that the Title of Simony which just preceds this hath no more to do with it than any other Title hath but in Lyndwood as before in the Decretals it is under another Title distinct from that of Simony which strongly argues it to be a distinct Crime Long before Lyndwood in the Reign of Hen. the First a Councel was held under Archbishop Anselm whose Second Canon is against Simony and the Third is against letting Jurisdictions to Farm but that Canon calls it by no such Name as Simony no more than ranks it under that head In the Abortive Canons of Edw. the Sixth there is not a Word about it though very much about Chancellors c. and their Jurisdictions The Canons of King James 1603 injoyns an Oath against Simony at Institution to Benefices and the Canon is under the general head Intituled Ministers their Ordination Function and Charge The whole Canon concerns Benefices which require a Canonical Title and Institution which is the very Definition of a Benefice in the Regulae juris Beneficium Ecclesiasticum licitè acquiri non potest sinè institutione Canonicâ And Lyndwood explains what a Benefice is Intelligo contineri appellatione Beneficii Dignitates personales praebendas Ecclesias omnes alia quaecunque cum curâ sine curâ quae cum titulo habentur Iustitutione Canonicâ Neither is the Oath against Simony recittd in that 40 Canon Administred by any who understands his Duty to Officials or Commissaries or any who act by Deputation But there is another injoyned in Can.