as to haue a religion so to frame the exercise of it according to their owne dispositions but some with more doting indulgence haue at last changed it into that which they were most naturally disposed to and did not alter and order their inclinations by it As the foure grand Monarchies the Chaldean with whom the Persian may well be joyned these turned the acts of religion into philosophicall considerations enquiries and explications of nature The Egyptians a principall branch of these Monarchies and from whom some thinke the Chaldeans were derived and that Belus Neptuni Libiaeque filius in Babyloniam colonos ex Aegypto traduxisset Diodorus Siculus Biblioth lib. 1. ex iis Sacerdotes quos Chaldeos Babylonii vocant qui more Aegyptiorum astra observant c. These Egyptians naturally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 superstitious in religion curious in mysteries transformed religion into all kinde of superstitions and by trying conclusions and chymicall experiments vpon it conceited the substance of it into vnexpected phansies furthered by mimicall expressions leading into and leaving in mysticall mazes The Grecians by nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intelligent able to find out and loving to contend drew religion into disputes and would beleeue no more than they could finde out by search of reason and apprehend by force of fansie and that they obstinately maintained by a wanton working wit which they might with more ease doe seeing their language was so happy for expression The Romans by nature inclined to dominion fitted the frame of their religion to a Monarchicall forme vnder the Pontifices Cujaci◠Origin lis §. 1 yet they seemed to seeke a Monopolie of all the Gods in the world for they receiued and worshipped the Gods of all the nations they conquered These nations framing religion to these ends August Civit 〈◊〉 20. cap had a forme of government vnder religious persons sutable to further contriue and compasse by all meanes their particular purposes and therefore they gaue them power of a most large extent yea they were ruled by them for the Chaldeans were originally Priests and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a priest Synesiu 126. and a Prince were all one with them So the Magi amongst the Persians the Priests of Apollo at Delphos amongst the Grecians did what they would Pomp◠Orig. I. And the Romans were led by their Pontifices and Augures but it was whither they would namely to a Monarchy Wee having not the ends of these nations in our religion must not vse the same forme of Clergie For I conceiue the aime of the best and wisest with vs is to preserue the Church and Common-wealth together Now that cannot be where the state of the Clergie governs but where it is governed Our ayme being such let vs consider what forme will be best governed vnder this Common-wealth There are but three distinct formes of Ecclesiasticall government in Christendome as the Monarchicall Aristocraticall Democraticall of these the Aristocraticall is most conformable to the rule of this Realme In proving of which assertion I will not onely insist vpon the proofe of past and present experience that it is so but discourse in reason why it should be so And first in opposition to the other formes of Ecclesiasticall government what they are likely to produce woefull experience hath long since felt in the one and what we may expect vpon probable conjecture from the other is not to be desired by any that vnderstand and loue the happinesse of this Civill State For all their principles fundamentall in their grounds of augmentation in their growth of conservation in their heigth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius lib. 6. and of reparation in their decayes are most dangerous for this Monarchy and the causes of their corruption would be so incorporated into the body and bowels of the Civill State that if it fall not before them and into their hands they would goe neere to pull it downe with them when they fall Not so speake of their power which they must haue and the exercise of it either in an ordinary and lawfull course or by indulgence or vsurpation and the manner of their proceedings in the execution of it what instruments they vse in counsell and action how much they trench vpon the power vndermine the government countermine the proceedings countermand the edict and confront a Monarchy I leaue it to wise and actiue men to consider § 3. First to speake of the Monarchicall which is now the Papall government How this Monarchicall forme hath heretofore agreed with this State all know and it is not likely that it should now so well accord with it because the reasons of that little agreement then the present particular interest in which this State vsed that Monarchy are ceased for then wee aymed to enlarge our dominion by the right of succession in France by the right of conquest in Scotland and Ireland But the causes of disagreement still remaine and are in their part aggravated to an vtter opposition so that as before it was dangerous so now it is a desperate case to re-entertaine that forme of Clergie which can and will rule vs and must necessarily alter and so worke the ruine of the present state Vnder this forme this Kingdome was no Monarchie but a Province vnder a forreiner an vsurper and a tyrant This was our best condition when that Clergie ruled vs though as favourable as they could or did any Monarchy in Europe The lawes and priviledges of the land were continually broken and infringed by them especially those lawes that did most immediatly vphold the Kings prerogatiue Against them they continually promulgated particular edicts for the decrees were too generall to be applyed to occasions and therefore they added the decretals so called because they gaue wings to the decrees for quicker dispatch And wee shall finde Duare◠benefici◠Prooem that most of the Decretall epistles which concerne Iurisdiction were written to English Prelates And as I conceiue some reason might be because the lawes of this land are more contrary to the Canon Law than the lawes of any other States in Christendome being they are more ruled by the Civill Law from which the Canon is derived and so more causes might arise here amongst vs either out of the contrariety of the Lawes or out of the narrower extent of the Common Law and also partly out of the ignorance of the proceedings of this State which was then likely to be most because intercourse and intelligence with Rome for that time was abridged for Henry 2. being then at variance with Thomas Becket who was sheltered by the Pope Alexander the third permitted not any Legate to reside in the kingdome but as soone as Vivian was arrived he was questioned and that by the Bishops of Winchester and Ely how hee durst land without the Kings speciall licence And partly they writ the oftner to English Bishops because they suspected them and justly to be
capacities of government in him the one spirituall the other temporall by both these hee hath supremacie and this supremacie is chiefly exercised in the calling presedencie and dissolving of the great assembly of the three States which high Court is not competently correspondent to both those powers in the King vnlesse the Parliament consist collectiue of spirituall and temporall persons which it hath anciently if the Booke De modo tenendi Parliamenti be authenticall for hee makes the vpper House consist of three States the Kings Majestie the Lords spirituall and temporall and lower of the Knights Ridleys view of Ecclesiasticall Lawes Procurators for the Clergie and the Burgesses which both answer the Kings mixt supremacie So that as he is supremus Iustitiarius totius Angliae in relation to the temporalitie so he is supremus or as Constantine truely entitled himselfe in the Councell of Nice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eusebius in vita lib. 3. in respect of the spiritualty But to returne to my present promise and purpose which was to shew how the actes of supremacie haue their effects in the Ecclesiasticall jurisdiction derived to the Clergie And I am now to shew what effect the power of promulgation of lawes hath which is in consenting confirming and publishing the Ecclesiasticall Lawes which are agreed vpon in Convocation not excluding the advice of the Parliament because the State Ecclesiasticall is not an independant societie but a member of the whole hence it is that they are called the Kings Ecclesiasticall Lawes by which the Clergie is ruled in spirituall causes according to which they exercise their jurisdiction in foro exteriori contentioso hence it is that for this last age the Ecclesiasticall Lawes of this Realme haue so well agreed with the Civill because they passe not without the assent of the supreame governour And it were much to be desired that Christian Princes would not onely permit lawes to be made and giue force to them by their authority but also that they would vouchsafe their personall presence to be Presidents in all assemblies for that end for then they would proceed and conclude to better purpose As Isidorus Pelusiota writes to the Emperour Theodosius the younger to be resident and president in the Councell of Ephesus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that if hee would be pleased to take so much time as to be present there he did not feare that any thing that should passe could be faultie but if he leaue it all to be done by turbulent suffrages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isiodoru◠lus lib. 311. Who can free that Synod from scornfull scoffings his counsell was safe and seasonable because the cause of feare was very probable and eminent For in a Councell where there is a Monarchicall authority a supreame power in one there will be more dispatch in deliberations more expedition in executions than where multitudes of equals sit alone for they will be many of them over-wise and most over-wilfull to agree in one poynt when as every singular person will broach his particular project and propose it as a publick law with resolution to be a recusant to all their lawes if they will not be Protestants to his and so it comes to passe too often that they are forced to yeeld to one another or else no law should passe Hence is that multiplicitie vncertainty confusion contrariety of lawes in some diseased States than which nothing discovers a State to be more desperately declining though they are good in their particulars for they shew the multiplication of ill manners which per accidens begot them and they are likely to make them worse because they being appointed to amend them are disappointed and disabled by their owne crosse contrarieties As in a naturall body over-growne and over-flowne with ill humours If a Philosopher that considers onely a body neither sick nor well giues that which is good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Hippocrates calls it and when he hath done an Emperick come that considers it as sick but he knowes not of what nor the temper of the constitution but boldly and blindly giues one medicine to all for all diseases and at last the judicious Physitian come and consider it as it is and know what to doe hee must first vndoe all the other haue done before hee dare administer that which should first haue beene taken and by this time the body is either past cure or desperate conclusions must be tried to recover it Therefore happy is our State Ecclesiasticall in whose Convocation our supream Soveraign is President so that the Lawes passing with his royall consent are certaine and easie to be obeyed by reason of their rarenesse and paucitie which makes them pertinent distinct and free from confusion And therefore I doe not a little marveile at learned Baronius Baronius Annal Anno. 528. that since hee doth not deny Iustinianus the Emperour the power of making Ecclesiasticall Lawes he should so scrupulously and busily inquire what should moue him to meddle with the making of them when as I doe not doubt but the Clergie then might request him to it This last act of supremacie is to receiue appeales and giue determinate decisions and this hath its effect and is exercised in the Ecclesiasticall Courts And they doe not exercise any power that is not derived from this supremacie either immediately or mediately So that as the lawes they execute are the Kings Ecclesiasticall Lawes so these Courts are the Kings and all the processes and courses approved by his Majesties Lawes Therefore now there is no ground for a praemunire in them though the words of the Statute runne to Rome or else-where for by else-where seemes to be meant the Romish power Babylonem◠Gallicam vt Petrarch epist 123. or Court which was not then at Rome because the Popes seat was then at Avignion in France and not our Bishops consistorie For I beleeue that Statute was made to free them as well from the forraine vsurpation as any other of the King Courts as the pragmaticall sanction of France doth which was of the nature and in imitation of it about the same time by Charles the seventh brother-in-law to Edward the third But however it was then meant I am sure it cannot extend to them now vnlesse wee will deny the Kings supremacie over all causes and persons Ecclesiasticall and then they are not the Kings Courts but if we grant the Kings supremacie wee must deny that any of his Courts can incurre a praemunire A prohibition I grant may lawfully lye there because it is safe for the whole State that every jurisdiction should haue its bounds and keep or be kept in them But yet I will not say so in generall but we must admit them with distinction of prohibitions one of Law another of Fact Now that prohibition which is of Law according to the expresse words of the Statute which are commonly large enough
the power and honour of the Clergie are inseparablie derived from the supreame Soveraigne then in being and not communicable to any other state so the particular powers and regalities by which they are more especially conveyed are inseparably and incommunicably appropriated to his royall person As for instance the power of the state of the Clergie is originally derived from his Ecclesiasticall supremacie the honours from his lawes and royall prerogatiue All Kings I confesse haue not Ecclesiasticall government and that because many giue up their right some know it not as many of our Kings for many yeares were bereaved of it in whole or in some principall parts by giving and granting to the Pope an inch in breadth with them and he taking an ell in height aboue them But when the first defender of the faith Henry the eighth was weary of the weight of that intollerable vsurpation especially when he perceived that the Popes ambition soared vpon the wings and winde of the spirituall supremacie to a temporall superioritie The King like Iulius Caesar that he might fully recover into his power the temporalitie potestatem Pontificiam Iacob origi◠§. 9. cum Caesaria potentia coniunxit hee resumed the Ecclesiasticall power finding that it was impossible in the course of the moderne policie of the Popes to bee supreame agent in temporall affaires while they were the highest in spirituall government especially since these powers cannot rest really divided in a Monarchie though they bee really distinct in a Monarch being a mixt person So that the statutes in the vicesimo quintò of Henry the eighth and primo of Elizabeth which determinately set downe this power of supremacy are not lawes inductory of a new but declaratorie of the ancient authoritie of our Prince with the solemne signification of their reas-sumption And our sacred Soveraigne doth not alone take this power for his right but many other Potentates in Christendome that haue not so much reason As the Kings of France Spaine Thesaurus Polit Apoteles 50. Guiceiardino hist lib. 4. Denmarke Poland Hungarie and Sicily which three last states haue more nearer dependance upon the Pope then any in Europe for Sicily hath beene held of him as a spirituall feud as Poland and Hungarie were both in one Popes dayes Benedict the seaventh converted from Paganisme Herbert histor Poloniae lib. 2. cap. 7. and one would thinke and so it seemes wholly at the Popes disposall especially in spirituall affaires Yet in Sicily the Kings of Spaine doe not onely claime supremacie of over-seeing but also superintendencie in doing in Ecclesiasticall employments Baron Anal. Anno 1209. and the Kings of Poland whose power is moderated by the limits and conditions of an election Thuanus hist lib. 56. Archiepiscopos Episcopos coenobiarchas dicunt suoque arbitrio eligunt and the Kings of Hungarie doe vse the same power and with as much reason in a Canonists opinion as we doe for though they cannot de iure yet Reges Angliae Hungariae conferunt beneficia privilegi◠Papae Guymer Comment prag sanct tit de Innatis The Kings of France haue alwayes beene at defiance with the Pope for this power renewing continually pragmaticall sanctions in defence of it especially in the time of Charles the seaventh therefore called Carolina sanctio Duarenus pro libertate Eccles Gallicanae §. 4. which was of that force by vertue of that approbation of the free Councell of Basile that it curbed and casheered the Popes power causing them to impeach it by appealing from it almost in all causes which Pius the second perceiving sollicited Lewis the eleventh the sonne of Charles to abolish and repeale that sanction Concordat Galliae Leonina Constit being enacted in a seditious schismaticall conventicle which he well approved for a generall Councell when hee was a private Aeneus Sylvius Secretarie to Fredericke the third The King for the present called it in but his wisdome presently found the mischiefe and rewarded Cardinall Balve very well for vrging him to it as the Popes Legat Prot◠gis ad cil 〈◊〉 apud histor Phili lib. 9 Conc◠Guic◠hist 〈◊〉 Rex Cardinalem Balvam in carcerem detrusit ob detrimentum consilio suo emergens and with so much displeasure that Philip de Comynes saith Cardinalis Balvensis carcerem horrendum excogitavit in quem inclusus primùm erat quatuordecem annos detentus non obstante Pontifice Romano The Kings of France were ever after stout in the defence of that sanction till Francis the first in his interview with Leo the tenth did remit the force of it in the Concordata Galliae which made his serious Secretarie Budaeus say Palladium Galliae proditum esse Budae lib. 5 The Kings of Spaine in Casteile haue some limited spirituall power by a late priviledge of Adrian the sixth granted to Charles the fifth but when they see their time Mar◠della they take so much as shall serue their turne as Philip the second seised vpon the temporalls of the Archbishoprick of Tolledo the Bishop Caranza being apprehended for suspicion of new heresie and when Sixtus Quintus sent to him to vndertake a warre against England and told him that he would remit to him all the revenewes that arose of that Bishopricke sede vacante prudentissimus princeps respondet se nil de suo Pontifici largiri Thu◠lib. 7 though at home his power is but what hee pleases to take yet in other of his territories it is lawfully as large as another Princes as in Burgundy and Belgia he hath the same right the King of France once had as Charles the fifth made a statute of Mortmanie Nullis personis Ecclesiasticis vel locis sacris licet vllam rem immohilem Thes lit 4 absque principis licentia acceptare vel habere And Philip the second his sonne publishing the Councell of Trent in the Low-Countries did not let it passe in all points with the full strength of an Ecclesiasticall law but restrained it with an expresse clause of speciall privision that it should in no wise prejudice or diminish any priviledge the King enjoyed touching possessary judgements or Ecclesiasticall livings or concerning nomination therevnto Boter Heroic quast lib. 1. But I will not now enquire whether our Prince hath such a supreame power iure positivo Pontificio I am sure it is iure divino Apostolico and supposing such a power I will for more distinct proceeding consider the severall streames and strings of this Ecclesiasticall power and how they flow and are fastned to the head and top of Soveraigntie paralleling them in the severall parts and points of this honour discovering how they are annexed to these powers and how they arise are raised and stand by his Maiesties lawes and Regall prerogatiue § 5 All power Ecclesiasticall is either power of order or of jurisdiction Durandus de origine jure Civ conclus 2. and both these
is the prohibition that is lawfull as for a prohibition of fact which is by a sophisticall suggestion sucked and squeezed out of the copie of the libell without judgment of the Kings Courts vpon it in my opinion is not right and is many times the cause of wrong either in vnjustice or delayes yea and in abusing of the Statute with the Kings Courts For the prohibition of law the most I conceiue it inferres is to make all the proceedings voide Coram non Iudice But if I might know what degree and quality of offence it is for a Court temporall to hold plea of a meere Ecclesiasticall cause I should more easily apprehend the scandalous nature of the ground of a prohibition which it may be is the same with a writ of errour in the temporall Court since that a consultation doth not ensue vpon that but after a prohibition grounded vpon a suggestion So then all the proceedings of these Courts haue their power from this last act of supremacie as well in primatiue processes of inquisition as in punitiue processes of execution As this authentick authoritie is most seene in the proceedings ex officio which are not onely nor alwayes by oath as many are mistaken These are by immediate commission where an Ecclesiasticall cause is criminall and prosecuted as criminall And so also the vtmost punitiue processe Ecclesiasticall which is a writ de Excommunicato capiendo is evidently derived from the Kings power and issueth immediately from his favour to the Church that it may be more easily obeyed Iohan. de Paris de Potestate Reg. Concl. 1. and is divers and variable in sundry governments and executed by temporall power being nothing of the nature of the spirituall excommunication but an accession concessâ permissione ex devotione Principum as Iohannes de Parisiis saith against Boniface the eight As for the judgements of Bishops consistories as they are derived from the power and law of Christ the great Bishop so they are like the judges of them who are rather arbiters amicabiles compositores as Panormitane then Iudges ruling by the austerity of authority so that poore defendants may flie to them as to their altars who are Ministers of the altar and in this sense that which Architas speakes is most true Arist Rhet. lib. 3. c. 11. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem esse arbitrum Aram. And though they haue no forcing power but from the King and no power of any force against the King yet the greatest and best Kings haue yeelded to them in their advice not as Prelates but as they are Fathers in God as Alexander the great said to his father King Philip 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Chrysost 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 farre vnlike the Bishops of Rome who will rule the highest Princes and yet professe themselues servants of servants which makes mee call to minde the observation of the wisest King Salomon Proverb 30. that one of the chiefest instruments whereby the earth is shaken is a servant that rules over Princes And as they vsurpe rule so they vsurpe the sword of temporall Princes and carry it in the spirituall scabbard and drawing it doe more hurt in their passion then they can help by their priviledge when as they found it soberly and orderly put up by St Peter when Christ was at his elbow to heale the greatest wound that hee could make Thus is it somewhat plaine how Ecclesiasticall power is derived from the King as hee is supreame head in lawfull and full authority over all causes and persons which double power in my conceit the custome of the ancient Persians at the death of their Monarch doth fully and fitly expresse for the lawes are silent Brisso◠Regn◠lib. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their holy eternall fire which every one worshiped in his private house as his houshold god was put out when the Emperour died § 4 The next thing which I promised to declare was how the honour of the state Ecclesiasticall is annexed to the power by the Kings lawes and royall prorogatiue The honour of the Clergy is contained in revenewes and priviledges 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A◠lib. 1. which are vnited to their powers of order and jurisdiction which powers although we should grant that simply considered in themselues they are not distinguished jure divino yet I am sure none will deny that they are distinct quoad extensionem permissione approbatione divinâ as Iohannes de Parisiis doth distinguish the power given the Apostles into six parts in respect of so many severall acts of execution the fift of which is potestas dispositionis ministrorum secundum quosdam quoad determinationem jurisdictionis Ecclesiasticae ut vitetur confusio Ioh. de cap. 1 And as they are thus distinct according to the execution and stand so confirmed by the positiue lawes of the land so they haue distinct portions and priviledges according to the same lawes yet after a different manner especially in respect of the portion For the power of order which hath maintenance of diverse kindes as tithes oblations Gleabland and mortuaries holds them all according to the lawes of this land as due to the Clergie for executing the power of order but by different acts of these lawes as Mortuaries are permitted and Gleablands granted Tithes and Oblations confirmed and all constrained to be paid Now tithes that are onely confirmed by the Kings positiue lawes are supposed to bee due by some other law of higher nature then the Kings which is not any forraine law Bellar. de Cler. lib. 1. cap. 10. as Ius Ecclesiasticum as Bellarmine calls the Cannon law it must bee then by law divine or immediately arising from supernaturall and morall considerations which law we grant to be positiue yet not meerely humaine Hooker Eccles Polit. l. 1. §. 15. nor changeable in respect to us and they must necessarily runne into many grosse errours that take onely such lawes for positiue as are invented by men and thence conclude them mutable And therefore I presume that the learned Selden doth so vnderstand the positiue law by which hee holds tithes to be due not in opposition to divine and morall but as specially diverse from it as it partly appeares in the whole drift of his history where I doe not beleeue that any can finde that hee ever delivers his judgement denying them to bee jure divino so that in my apprehension and I hope not against his intention he may doe the Church much good in his relating what wrongs the Clergy in all ages haue sustained For his history is onely de facto what hath beene done hee giues not his judgement de iure what ought to haue beene done which if he had he would assuredly haue pronounced for them and this I am forced to beleeue when I consider his exact generall knowledge and the reverent respect he beares to
because they hold not tythes due iure divino and that because they desire still to hold them by the law of the land And that they may more colourably continue it they hold no such sinne as Symonie that the presented may make a symonaicall contract whereby they are confirmed and corroborated in their sacrilegious vsurpations But I will not dispute the poynt whether there be any such sinne as Symonie in relation to a private presentation without respect to orders taken with it But I am sure none will deny but where is a symonaicall contract there is perjurie in the Instituted As for sacriledge I grant it is not easie for men that are guilty of it to be convinced that it is a sinne For sinnes of omission cannot so quickly and sharply touch the conscienee because they are the breach of an affirmatiue law which doth not so strongly check the vice as informe to the dutie especially when pleasure or profit haue bribed the judgement For I feare some hold stolne tythes the sweetest part of their inheritance as it is said by the Epicures Zetzes Chil. 7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who doting vpon voluptuous sweet delicates called hony the tenth part of the Ambrosia and perhaps that sect set vp the trade of Bee-mongers in Athens as Synesius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synesiuâ— 136. So I am afraid the tickling sweetnesse of tythes is the cause why the smart and sowrnesse of sacriledge is not felt nor tasted And therefore in my opinion Thom. 〈◊〉 q. 155. Thomas Aquinas doth well to make sacriledge speciem luxuriae so that it may be a sinne and yet they never be convinced of it I am sure not onely the ancient Fathers of the most pure primitiue Church but even the godly Emperours did esteeme it a sinne and that in a high degree that when they granted generall pardons at Easter and other solemne timâ—s they excepted sacrilegious persons As Theodosius the great Theod. tit de Indulg Crim. ob diem Paschae quem intimo corde celebramus quos reatus astringit carcer inclusit solvimus attamen sacrilegus maximè à communione istius munieris separetur So also Gratian and Valentinian Religio anniversariae observationis hortatur vt omnes periculo carceris à metu poenarum eximi iubeamus verùm eos excipimus quos scelera graviora compulerunt Theod. eodem tit vt qui sunt sacrilegi sepulchri violatores So in many of the Novels 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vpon Easter day set all persons free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Harmenopulus Promp Iur. Civ l. 6. tit 5. but if any be guilty of sacriledge set him be kept still in hold So that you see it was reckoned inter extraordinaria crimina in those dayes and so it would be thought with vs if profit did not blinde the judgement in the payer of tythes and indiscreet covetousnesse leade many Clergy-men to make no distinction betwixt free and friendly compositions with a bountifull Patron and sacriledge In my poore judgement the Canon Law is but just Quicunque c. 6. q. de Iur. Patronatus in decreeing that Si patronus Laicus ad inopiam fuerit redactus hee must haue some competent sustenance from the incumbent especially if he haue not beene sacrilegious and so by Gods judgement brought to it And I doe conceiue that this may be notwithstanding they doe not charge any parsonage with annuitie rents which is prohibited by the statute of Elizab. 3 Eliz. c. 2. Thus it is plaine that the revenues and maintenance of the Clergie are possessed by the Kings Lawes and may be demanded as due by them § 5. The other part of the honour of the Clergie annexed to the power of order is in priviledges immunities by which this power is exercised with more ease delight and respect and as it were with the whole man without distraction Now all the priviledges the Church doth enjoy or desire arise and are raised by the Kings lawes and royall prerogatiue As that ancient-often-confirmed Magna Charta doth fully confirme all former priviledges of the Clergie Magâ— ta cap And that was then favour enough for then they had priviledges to a surfeiting surplussage but now the Clergie stands in more need of them and they humbly expect them onely from the favour of their Prince who hath a plenitude of power to grant more and larger priviledges than ever they will desire For all priviledges are granted in relation to some Law and the power of an absolute Prince is aboue all Lawes as Dion Chrysostome told just Trajane 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cujac vat liâ— or as the same Counsellour to the same Emperour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Cujacius explaines and limits to coactiue correctiue Lawes which Dion saith began in Augustus dayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion none of the ancient Romans were freed from lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is from the necessity of obeying And I doe beleeue that the Scriptures seeing that they say more for the right of Kings than any booke in the world doe if not fully set downe this power yet permit it with approbation in some cases especially for the publick good of the Church which I am sure is a farre more conscionable and commendable course than to accommodate religion to serue the turne of the State as that judicious Amiratus vpon Tacitus Bisogna accommodar la ragione di stato alla religione nan la religione alla ragione di stato Our King then being a most absolute Monarch hath this prerogatiue and from that wee haue and hold our priviledges not from that written prerogatiue abstracted out of Fitzherberts Abridgement by Sr William Stanford whereby the Kings Exchequer hath many priviledges and peculiar processes as the Civilians call them privilegia fisci fiscus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habet Cujaciâ— serv l. 2 But from an vnwritten vnrestrained right of dominion whereby he hath plenarie power not onely to make legall propositions of validitie or voyde in their first institution or to interpret them either by declaring them to bee corrected in some poyntes and cases especially if hee correct them by a more particular expresse pressing law as hee may correct the law of nature by the law of nations the law of nations by the law of armes the law of armes by the law of particular Leagues and all by the power of dominion or restraine them in respect of some persons or publick societies but he may dispence also with them since some penall statutes are made with relation to his power of pardon after the act therefore it is not so much to exempt them from being obnoxious to the punishment by pre-interpreting that it was not intended to extend to such persons for so the priviledge is not against law but besides it or aboue it Yea there are statutes dispensatorie as
that of the pluralitie and non recidencie which the Archbishop of Canterbury limits by his approbation Eccl. Anglicanae Canon 41. And priviledges must necessarily bee where there are multitudes of statutes which be so strict in point of injunction as if the makers of them had not considered that politique lawes must be made with respect to morall possibilitie as what men may doe and yet the punishment of their transgression is not expressed but left to the pleasure or displeasure of the King But these are not the priviledges that the Kings royall prerogatiue doth grant as immunities and impunities for then the lawes should bee onely punitine if there were onely vse of protections and pardons but as lawes are also remuneratiue so Princes haue power to reward after a priviledging manner and chiefly in our Kingdome where it seemes to be on purpose omitted by the written lawes and left to the Kings pleasure and power especially concerning Ecclesiasticall persons who haue most neede of them and may now as freely enjoy them as any other persons For though heretofore it was prejudiciall to our Kings to grant priviledges to all Ecclesiasticall persons when they were so encreased in multitudes and overgrowne in magnitude for the whole Kingdome and the Popes would confirme them as irrevocable yet now they are but few in number and small in power and the King may call them in when hee pleases This want of these priviledges hath beene the cause of much evill in the Church and the more they are impeached by those that professe themselues the maintainers of the Kings peace lawes and royall prerogatiue the more will the state Ecclesiasticall runne to ruine And they are much infringed in our Vniversities which I am forced to complaine of with feare lest that fall out which happened to the Vniversitie of Prague which was vtterly ruined by Charles the fift taking the priviledges away at Don Leâ—is desire Whereas Francis the first of France fearing and favouring the Vniversitie of Paris restored all the priviledges which Lewis the eleventh had taken away vpon a just ground of sedition Dino hist 〈◊〉 which hath made it to reviue and flourish ever since But there are some politiques that hold it a needlesse thing to bee any way indulgent to silly Schollers Cujaâ— sent 1. tit as Cujacius saith out of Galen that they expressed weake men vnder the title of scholastici they make meere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iohn a noakes of them but the fault is in themselues according to the French Proverbe Qui se fait brebis le lâ—up la mange For though the Clergie bee weake of it selfe and tempt the contemners of it to over-top and over-turne it Yet since we haue a pious prudent Prince that is royally ready vpon the first appeale to protect and relieue his poore Clergie we are not to be pittied if we neglect to implore his supreame assistance And thus it is something evident how the honour of the Clergie annexed to the power of order is granted and sustained by the Kings lawes and royall prerogatiue I must now in briefe shew the like of the honour annexed to the power of jurisdiction § 6 The power of jurisdiction which I doe here intend is not that deligated power which is in Bishops Vicars or Officialls nor that power Archdeacons and Deanes enjoy either by custome or priviledge but that ordinary power which is in Bishops To this power of jurisdiction there is honour annexed by the lawes of this land and the Kings royall prerogatiue which I divide as before into revenewes ordinary and priviledges the revenewes are their temporalls and part of the perquisits called the Census Cathedraticus the first of which are given and granted by the Kings royall bounty confirmed by the lawes the other are set downe and approved by the same lawes Bishops temporalls are annexed to their sees by the Kings gift Stanford praerogat cap. 1. and are as it were their Gleab but are indeed their Baronies which they hold of the King in capite and performe services for them and therefore they are as it were wards to the King during the vacancie quae ratione Baroniae as Linwood ad Episcopum spectare possunt Linwood de immunitatib Ecclesiae Duarenus de beneficijs l. 3. c. 11. Dominus Rex custodiam habet as Duarenus sayes of the Kings of France Princeps quà m diu vacat Episcopalis sedes feudorum lege praediorum omnium administrationem suscipit But these temporalls are not to be restored till consecration and so seeme to be annexed to the power of order in Bishops Augustinus de Ancona de potest P. P. quaest 22. Art 9. for their consecration according to the scholasticall Canonists is but perfectio characteris which they at first received when they tooke the order of Priesthood and so seeme not properly annexed to the power of jurisdiction for before consecration vpon election and confirmation they may exercise the power of jurisdiction though not of order Episcopus electus confirmatus potest exercere quae sunt jurisdictionis Panormitan in Decret Ver. Cons §. 6. non quae sunt ordinis Episcopalis ante consecrationem as Othobone vpon Linwood suspendere potest à beneficio non ab officio Linwooâ— de constiâ— Glanvil cap. 10. quia ab officio suspendere est à potestate ordinis ordinaria But Iustice Glanvil seemes to intimate that they were restored when they were but Lords elect because electi ante consecrationem homagia sua facere solent but whether it were de jure or de gratia as the learned in the Common law distinguish I leaue to them to determine and thinke it great happinesse for the Bishops and the great honour of our moderne Kings that they are so fully restored at all since they haue as much power and may pretend as much reason to seise the temporalls into their hands as well as others But our Royall Soveraignes pious Father 1. Iacob set a good example to his Majestie to follow for in the first yeare of his raigne hee enacted a statute to prevent all diminution of Episcopall revenewes though it were to alienate them to the vse of his Crowne yea though it were but in exchange for impropriations a course which was too common in Queene Elizabeths dayes insteed whereof our Kings haue out of royall indulgence given some licences for Mortmaines If this redresse had come before they had beene too much impaired Bishops would not haue desired so many Commendams nor Rectors of Parishes made vse of the statute of pluralitie To their revenewes in these temporalls there are many honourable priviledges annexed as they are Barones So that Bishops haue the priviledges of Barons in the Parliament and that vpon good ground since they hold of the King and performe the services belonging to them Mathew Hen. 2. as Mathew Paris Episcopi de rege tenent in capite Baronias faciunt