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
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
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
therefore no lesse then Laics are subject unto the secular Prince Let every soul be subject unto the higher Powers As none is exempted from the obedience that he owes to God so none is exempted from the obedience that he owes to his lawfull Prince For all power is of God as the Apostle there subjoynes This was it which moved the Kingly Prophet and propheticall King David to stile Kings and secular Princes Gods with a Deus stâ—tit God standeth in the assembly of Gods he judgeth among the Gods For as it is truly and religiously avouched by King Jehosaphat secular Judges do not execute the judgements of men but of God himselfe the very same former text of David our Saviour Christ speaking of secular Princes and Judges hath cited in the Gospell and there makes it good that unto them doth belong the name of Gods If he called them Gods unto whom the word of God was given as Cardinall Bellarmine hath learnedly noted and observed Hetrod If you had in this manner drawn your conclusion to a head Ecclesiastics therefore and seculars too are not by Gods Law subjâ—ct unto the secular Prince but seculars by mans law and ecclesiastics by no law at all neither of God nor man then your conclusion had been aptly deduced from your premises For it hath been proved before that Princes attaine to Soveraignty over their people not by divine title but olny humane If it be otherwise I pray let me have it well proved by some plain passage of Scripture that for instance the LL. of Venice are Jure divino the LL. Paramount of Padua Verona with other like Cities and if any question should grow concerning the Kingdome of Cyprus what faire title would the Venetian State alledge for the same Some goodly Charter of sacred Scripture Surely no but either some title of donation or ancient possession or some other like humane title Now then if they shall fall short in proving their title over the Laics of Padua Cyprus c. by divine authority when will they prove their pretended title over Clerics by the same authority I dare passe yet a whole degree further namely to maintain that all degrees and sorts of Laics yea that Soveraign Princes are by Gods Law in the state of subjection to Priests and that by the same Law of God Priests are quitted and freed from subjection to secular Princes My reason because according to Gods holy writ and word the positive law of God priests are pastors or shepheards to feed and Laics though never so great Princes are sheepe to be fed Priests are Fathers and Laics are sonnes Now according to the light of nature the law naturall of God the sheep are under tearmes of subjection to the Shepheard and the Shepherd is bound under no such termes to the sheep as the sonne also lives in state of subjection to the Father whereas the Father owes no duty of that nature to the sonne moreover the comparison made by Gregory Nazianzene between ecclesiasticall and secular is most excellent and usually taken up of holy Divines as in mans nature there is reason and flesh of which two united the whole frame and composition of man doth consist so in the Church their ecclesiasticall or spirituall power and secular or temporall power of which two the mysticall body of the Church is aptly composed and as in man reason hath superiority over the flesh and the flesh is never superior over reason except it be in some fit of rage and fury of Rebellion Againe as reason directs rules commands the flesh and sometime brings her to a kind of rack I meane doth chastise the flesh and puts her to a certain pennance of long fasting watching whereas the flesh never directs rules commands nor layes any hard lawes of punishment upon reason even so the spirituall power hath a superiority over the secular by vertue and force whereof it both may and ought also to give direction to rule to command and punish the secular power whensoever it kicks or spurnes or proves refractory or makes any breach into the inclosures of ecclesiasticall Regiment whereas the secular power is not superior to the spirituall nor can it direct rule command or punish the same De facto in cases of Rebellion and Tyrannie which by Heathen Princes or by Heretics hath been sometimes put in practise true it is that all power is of God but how either immediately or else by meanes And as none is exempted from obedience due to God so none is exempted from obedience due to the Prince provided alwaies that a man be the said Princes vassall or Subject and in cases likewise wherein he owes vassalage or subjection to the said Prince It is no lesse true that Princes as Princes are Gods Lievtenants and therefore to be honoured yea served with due obedience as God himselfe in such causes and matters as lye within their power Servants be obedient to those who are your masters according to the flesh even as unto Christ And whereas you say Cardinall Bellarmine hath averred in writing that secular Princes in Scripture are called Gods he was you must understand induced so to write of purpose to confound hereticall Anabaptists who teach that neither secular Princes nor tribunals nor judgements nor other like politick and civill regiments are to be tolerated in the Church of God But as that Cardinall hath written and witnessed that secular Princes are Gods in respect of their Subjects even so he hath justified that priests are Gods in respect of secular Princes If you therefore Orthodox like a good Roman Catholique would have trod in the steps of that Cardinall you should have taken up his weapons and should have made use of them against Heretics not against our mother the Church nor should you like the Spider have suckt such poyson from the same flowers out of which the Bee sucks and gathers hony Orthod I am not able to reach the bottome of your deep conceptions would you have your own conclusions to be drawne out of my premises If I had been inspired with a spirit of divination and by the gift of Sooth-saying could have foreseen that your selfe or Cardinall Bellarmine was to be the Champion that would undertake to cudgell my coat I mean so subtilly to trounce me and to play such trumps in my way I would have directly drawn two distinct conclusions the one true and built upon my own true certaine and infallible premises the other false obliquely derived from your premises or those of his illustrious Lordship but for as much as the spirit of divination doth not harbour in my brest or braine I must only shape and lay in this answer for my selfe that from the same premises which I have now framed I would wish none other but mine own conclusion to be inferred and from your premises and those of the Lord Cardinall your own or his own conclusions to be inducted for as my conclusion is true because it
act play his part or handled his weapons like a skilfull master of defence halfe so well you have indeed to deale plainly and truly puzzâ—ld my wits a litle and put my reading perhaps to some stagger If you can play the man and lay about you as well in the other seven Propositions for the second whereof in token of challenge I here cast downe my glove as the Appellant calling for your personall appearance to answer the challenge in this place to morrow by sun-rising you may perhaps work more with my present opinions beginning to waver then you are aware Orthod I refuse not your challenge but in signe of acceptation I take up your glove and will not faile to be in the field at the houre assigned Interim I wish you good rest for this night and sharper weapons for the next morning The second dayes Conference upon the second Proposition Het A Good morrow to you Orthodox worthy Champion Defendant you come well armed I make no doubt at all pieces Orthod The same salutation to you Hetrodox noble Champion Appellant whose armes I wish to be more pungent in the conflict of this day then I could find them in our late former skirmish Hetrod Be pleased then without further delay and more losse of time to lay forth your second Ground or Proposition Orthod Nothing pleaseth me better Then mark well the words and contents thereof Christ our Saviour as the Sonne of God equall to the Father is King of Kings and Lord of Lords and yet all the time that he was clothed with our mortall spoyles not onely before his bitter death but likewise after his most blessed and glorious resurrection he never exercised the least power of a secular and temporall Prince Hetrod Make that good and you shall win the spurs or carry away my weapons out of the field Orthod Then sure it shall goe very hard but I will here leave you unarmed in the place For Christ our Saviour was never invested or inthronised in any temporall Kingdome Pilate makes the question to Christ Art thou a King Christ gives the answer Thou sayest I am a King But know O Pilate howsoever I am a King yet my Kingdome is not of this world that is not a temporall Kingdome When that multitude of people who had been miraculously fed and sated with five loaves and two fishes were minded and purposed to make him King he stept aside that he might not be taken by them and so made King He never took upon him to sit as Judge or Umpire in any mans cause Tho. Aqui. in ep ad Roman but answered those who required him to give sentence in a certaine litigious matter Who made me a Judge over your persons or your causes Yea he directly acknowledged Pilate Caesars deputy or Governour to be his lawfull Judge Thou couldst not have any power over me if it were not given thee from above Hetrod This your second Proposition seems to shoot and have a fling at matters of State in present question and no meane garboyles But in sooth it doth not so much as touch the same for they treat not of temporall Kingdomes but of Ecclesiasticall affaires so that your Proposition serveth onely to bewray your own bad affection and erroneous conceit I therefore must give you thus much to understand Very certaine it is that Christ as he was Man mortall did never exercise any power of a temporall Prince in this world For his comming into the world it is his owne testimony was to suffer to serve to teach men contempt of worldly wealth and honour as also by his humility and obedience to chalke out and make plaine the way or path which leadeth to the celestiall Paradise before the face and eyes of all proud and rebellious or disobedient people The Sonne of Man came not to be served but to serve and to give his life for the redemption of many Mar. 20.28 The Sonne of Man hath not whereon to lay his head Learne of mee that I am meek and lowly in heart Ye know the grace of our Lord Jesus Christ Luc. 9.58 Mat. 11.29 2 Cor. 8.9 Phil. 2.8 that he being rich for your sakes became poore He humbled himselfe and became ebedient to the death even the death of the crosse But your Proposition should carry this one joynt or branch more That Christ even as man in case he had been so minded might have assumed to himselfe the dominion of all temporall causes or matters and made himselfe a King or an Emperour Jam. 11. Heb. 1.2 which of the two he would The Father hath given all things into his hands and hath made him heyre of all things Againe It should not have been put down in your Proposition that Christ after his Resurrection exercised no power of a temporall Prince without addition of this clause that Christ after his Resurrection even as he is man hath obtained the government of the whole wold not as a temporall Prince but as an Eternall Prince Reve. 1.5 Mat. 28.18 farre superiour to all temporall Princes as the first begotten of the dead and Prince of all earthly Princes and to whom all power is given both in Heaven and in earth Which power is not properly temporall bâ—cause it is eternall and yet is above all things both temporall and eternall But now againe that Christ acknowledged Pilate for his Judge as you affirme I must be bold to tell you Orthodox It smells somwhat ranke of errour For Christ even as man was the High preist with power of excellencie yea he was the head of men and of Angells so that he had no superiour upon the face of the whole earth neither could he be judged of any other I meane de jure by right Philip. 2.8 howsoever perhaps de facto by fact he might be brought coram nobis upon his owne sufferance and permission For it was he that humbled himself viz. because he would be so humbled by the death of the Crosse And as for his words to Pilate Thou couldst have no power over me O Pilate if it were not given thee from above where Christ seems to take Pilate for his Judge this answer I make By power in those words is meant Permission and so the sense of that passage results to this reckoning That Pilate had never been able to stir either one foot or finger if it had not been by Gods permission In the same sense are these other words to be taken Luc. This is your houre and the power of darknesse And this is the answer of the holy Fathers Chrysostom and Cyril in their Expositions upon the 19. of John In 13. ad Rom. But whereas Thomas understands the same place of Iohn of the power that Princes have from God it likes me well to confesse and say that Pilates power as the Minister of Cesar was from God from whom all lawfull power descends Howbeit with your favour that such power in
can be no seemlie thing to make the Church of God lesse free in the Reigne and Government of Christian Princes then shee was in Pharohs time Let us now see and examine the reasons which you bring for proofe of your first Proposition For you pretend and alledge That Exemption of Ecclesiasticall Persons and their Possessions is onelie established and granted by mans Law and that your opinion in that point is more conformable to sacred Scripture to the holy Doctors and to the Histories of the Church then the contrarie opinion Orthodox You demand the reasons of my Doctrine in verie good time Hâ—trodox For in truth we are now come to the golden Key that opens the Closet and Cabinet of my Catholique Doctrine Howbeit Sir before I shall alleadge proofes of his Doctrine First it will be needfull to declare by certaine Propositions in what points your opinion dâ—ffâ—â—s from theirs who are commonly cited under the name of Heretiques which to be plaine iâ— likewise my opinion 1. There is a great difference betweene these two termes not Subject and exempt For the man is not subject unto any Prince Propositions foreâ—aid for grounds of the defence following over whom the power of the said Prince doth not extend and stretch Take this for Example An English man usually and commonly dwelling in England is not subject unto the French King For the French Kings power extends not over the English who have their common habitation in the Realme of England But in case an English-man dwelling in England shall not obey the King of England and his Lawes and shall not be conformable to the Statutes of England it must not be said that he is a Refractory because he is not subject unto the King of England but because he is exempted either by Almighty God the Lord of all or else by the King of Englands most Royall and gracious Priviledge So that whereas I affirme that Ecclesiastick Exemption and Immunitie is not in force de Jure divino by Gods Law my meaning is not in Ecclesiasticall and Spirituall causes cases or delicts For in cases of that nature and kind we cannot say that Clerics are excempt from the power of their lawfull and naturall Priâ—ce but we onely pronounce they are not subject unto the said Prince Then it remains that my meaning is in such Goods in such Causes in such Delicts as properly fall within the termes of Princely power not only to take due cognisance thereof but also to set and appoint due order in the same and what can such things but meerely Temporall and Politicall matters This hath begot and bred the Errour in some writers and your Error Hetrodox in particular In that whereas I contend that Clerics are not exempt from the power of their Naturall Prince by Gods Law you in all hast inferre thereupon Ergo Princes have power to make Lawes for saying Masse and for the marriage of Priests Certes Hetrodox this consequence hath no weight like a scive that holds no water they are not exempt from Temporall Power Ergo in Spirituall Delicts and causes they are subject Such equivocating Arguments of double sense and construction which are and ever have beene the precipitating of many simple spirits into erroneous conceipts ought by all meanes in so grave and weighty a subject both carefully and curiouslie to be avoided When I therefore speake of Exception Exemption and Immunitie from Secular power I must of necessity be conceived and taken to meane in such Causes in such Goods and in such Delicts wherein without all priviledge both Divine and Humane of God or man a man should of necessitie be subject unto the Secular Prince 2. There be foure opinions laid to the charge of Heretiques and rejected in this Argument as condemned and cursed with Bell Booke and Candle The Fathers of the first opinion are Marsilius of Padua and Jandunus These are charged and challenged by some to teach that Christ paid Tribute Necessitate coactus as one enforced by necessitie The next is Calvins opinion He dreames that Clerics are subject unto the Temporall Prince Ex debito in all Causes except onely such as are meerely Ecclesiasticall The third opinion calls Peter Martyr father He makes no bones to pâ—ofesse that it rests not in the hands it lyes not in the power of Princes to grant any such Priviledge of Exemption unto Clerics and in case they shall grant any such Priviledge they shall run into the snares of sinne because every such Grant is repugnant and contrary to Gods Law The fourth is the opinion of Brentius and Philip Melancthon they contend that Clerics are subject unto the Secular Prince even in causes meerly Ecclesiasticall All this verbatim is taken out of Card. Bellarmine Lib. 1. cap. 28. de Clericis It was therefore either out of affected Ignorance or else out of Supine Malignitie that one hath charged my Doctrine to be sprinkled or dipt in Brentianated Calviniated and Marsilianated holy water For I neither affirme with Marsilius of Padua if neverthelesse Marsilius was culpable of any such condemned opinion that our Lord Christ paid tribute as enforced by necessity but onely to shun the rocke of giving scandall Neither doe I teach with Calvin that in all Causes and Criminall Delicts Clerics are subject and ought so to be but in such onely wherein they have not beene exempted which Exemption stands not in force by Gods Law but by Princes Priviledge Neither doe I contend with Peter Martyr that Princes can grant no such Exemption but rather the contrarie that such Exemption may be granted Neither doe I lastly maintaine with Brentius that Clerics are subject in Spirituall Causes For I distinguish the two Powers the Temporall and the Spirituall And when I speake of Subjection or Exemption of Clerics I speake onely in Temporall matters over which the said power extends and stretches out her mighty arme and not in meere Ecclesiasticall matters and Spirituall save onely by Accident 3. My opinion is this that Clerics are not exempted from the power of Secular Princes by Gods Law but onely by Princely Priviledge either expressed or at least in tacite grant I mean after Canons lawfully published received as also after many laudable and approved Customes for such purpose Now that my Doctrine herein is Catholique it is confest by Cardinall Bellarmine himselfe in the place last cited For in his last Edition he holds that Exemption is by Gods Law forgetting by like what he had taught like a Doctor out of his Chaire in his other Bookes to the contrary of the same subject As where he writes of Medina and Conarruuias two Catholique Authors and both of them resolute in my true opinion for this point For he takes them downe in a round Censure terming them bold and hardy speakers in these words Sed operae pretium erit C de Restit q 15. ad eas objectiones breviter respondere quas Didacus Conarruuias Joannes Medina
Gods Law as in like manner the Law Civill is neverthelesse it is not Divine but only Nationall and Humane Law neither hath any man ever thought it was Divine 2. Every thing done by some Nations cannot be called the Law of Nations and consequently Divine For it is a common and ordinary Custome of Nations to seeke and to exercise Revenge and yet Revenge hath no ground no warrant from Gods Law nay it is directly prohibited by our Lord Jesus Christ himselfe Audistis quia dictum c. you have heard how it hath been said to them of old Mat. 5. thou shalt hate thine enemy but I say unto you love your Enemies 3. Albeit some Princes have granted such Immunity or Priviledge in some particular case as in the exempting of Priests from Tributes neverthelesse the Exemption in all cases is not in force by Law of Nations because most Nations neither have practised nor do this day exercise any such course of Benignity For example In the Law of Nature all the First borne according to the common opinion were Priests shall it hereupon be concluded that all the First-borne in the world were exempt at least from Tribute The Lord Cardinals Argument proves not a haires bredth more which to me seems an answer little beseeming a man of his Lordships incomparable learning 4. If his Lordships Argument had any force at all to prove that Exemption is by the Law of Nations it should only work this conclusion that Princes ought to exempt Priests from Tribute But our question turnes not upon that hindge No the main question consists in this point Whether Ecclesiastics are exempt in all Temporall matters and causes without speciall and gracious priviledge of their Princes 5. That is called Jus Gentium the Law of Nations which ever was from the beginning of the world unchangeable and shall so continue unto the worlds end as that of just Dominion and Servitude That of Marriage for the perpetuall preservation of man-kind That which all Nations indifferently have observed and still observe to this day Turks Pagans Christians Jewes c. But for Christian Priests to be exempted it cannot stand by the Law of Nations because they were instituted by Christ and besides All Nations have not exempted their Priests 6. To conclude Whereas Christ our Lord hath so deepely charged all Christians to practise Humility and Subjection whereas also St. Paul on his part hath absolutely commanded every Soule to be subject unto the higher Powers though Exemption had been by the Law of Nations that is observed of all Nations Wherefore might it not be abrogated or at least derogated by Divine Law Positive As Christ was able to repeale and disanull that Custome of Nations concerning the revenge of Enemies with a new Law Hetrodox If you have now sufficiently fore-layd all your grounds for this present matter it is time that you apply your selfe to your best Defence and to trace out my particular Errours Orthodox Well remembred you shall see mee trace them out one by one in my defence as men use to trace Hares in a Snow Two things I have affirmed before the one that Ecclesiastics and their Possessions or Goods are not exempted from Secular power meaning as hath been said in such Cases and Causes unto which the said Secular power doth properly extend for so much the word Exemption signifies The other that Ecclesiastics enjoy no such Exemption by the Law of God but by mans Law without growing or descending to any particular whether the said mans Law be the Law of Nations or the Civill or the Canon Law Howbeit my opinion is the same that Medina holds and other Authors alledged for this purpose That Exemption goes by Priviledge of Princes Now to your Errours in your late and last opposition which I find to be Eight 1. The sacred Councell of Trent you say hath determined that immunity of Clerics is by Divine Law Sess 25. cap. 20. But in the said Councell and Session which your selfe have cited I can read no such Determination The Councell there treats onely in generall of Ecclesiastick Immunity and Liberty adding this Adjunct or Epithet Divinâ ordinatione constitutam appointed by Gods Ordinance It doth not say whosoever shall affirme that such Immunity in Temporals is not by Gods Law let him be Anathema let him be accursed Nor doth it determine it is by Gods Law but speakes in a generality including that Immunity or Exemption which is in Ecclesiasticall and Spirituall causes And how those words Appointed by Gods Ordinance are to be taken or understood I appeale to the Glosse unto which the Doctors are alwaies referred whensoever Exemption in Temporals is avouched to be appointed by Gods Ordinance or by the Law of God For the Glosse it selfe saith Est de Jure Divino id est deducitur ab exemplo c. It is by Gods Law What is that It is drawne from the example of the Patriarch Joseph and Artaxerxes the Persian King Where the Glosse doth not meane it is from Gods Law as by any way of Precept but rather that by Princes it is granted by reason and occasion of those two Examples read in holy Scripture which is Gods Law But I deny not Hetrodox that by these Examples it is decent for Princes to grant by Patent or or Charter such Exemption from Tributes or that Princes having once granted the same by the said Examples for the Tributes in particular whereof we now intreat and of none other Subject should revoke repeale and nullifie the said Grant of Exemption Extra casum necessitatis except in cases of necessity I onely maintaine there is no precâ—pt neither in Scripture nor in the Divine Law of Nâ—ture Tâ—â—t either the persons of Cleries or their Goodâ— Possessi ns as Free-hold can be exempted except onely the Prince be pleased out of his Royall Grace and Prerogative to seale such priviledge of Exemption Then Sir with your favour the Councell having determined no more then is by the foresaid Canon cited must have and carry this construction That first of all the Councell grounds no Determination Secondly That it provides for Exemption in Spirituall Causes Thirdly that in case it speakes of Exemption in Temporall it speakes onely per quandam decentiam probabilitatem similitudinem by way of Decencie Probability and Similitude as the Glosse and other Doctors avouch whom I neither dare nor purpose to contradict For I speake of Gods Law not by way of Similitude but in propriety of termes This Hetrodox is the reason wherefore neither Medina nor Iansenius nor Conarruuias and others who printed their workes and writings after the Councell of Trent never said they held any opinion against the Councell and yet are directly of my opinion Sess 25. Moreover the said Session was dispatcht in Post-hast and Precipice if I may take up the Diaries own word when the French Prelates were departed from the Councell and the Spanish for their part
which executes the Jurisdiction of the Prince in Venice and not the Duke 10. You say the Authority of the Republic over his Subjects iâ— derived from men and the Popes Authority from God Rom. 13. Sap. this Errour hath been dasht out of countenance before by the expresse text of St. Paul and other Scripture 11. You affirme the Republic taking his beginning when Ecclesiastics were exempted before she could not be divested of that wherein she was never invested In this point Hetrodox you should have drawn some plain Demonstration that Ecclesiastics were exempted in those times of the Republics birth Whereas you alledge but one priviledge of Frederick II. not worth whistling but a new upstart instance in a manner of two daies old and such as with Ecclesiastics doth not deserve to beare any sway For after the said Priviledge he was excommunicated and deposed from the Empire by Gregorie IX and so by consequence all his Constitutions were annulled But Sir the Lords of Venice have run still at all times by the File and have cut their cloth by the thred of the most holy Emperor Iustinian whose Novell was de-cryed like false and adulterous Coyne and never spoiled Ecclesiastics of any Exemption which they formerly enjoyed but rather endowed them with other new Priviledges 12. You affirme againe that vi characteris by vertue of the Character due to the order of Priests the Prince is deprived of his Authority over his owne Subjects Touching which point I answer thus much and say no more If the Character of Baptisme hath no vertue Quaest 15. de Restitu Cap Novit de judiciu Notab 6. no force or power to free any man from Subjection to his lawfull and naturall Prince much lesse the Character of Clericall Order You know this valide Argument of Medina which you also know Navarrus holds to be insoluble 13. You pretend that Scripture the Law of God Canons and Councels have granted Exemption unto Ecclesiastics I answer it is not commanded in Divine Scripture nor taught in the Law of Nature which is likewise Divine No such matter is defined by the Councels nor by the Canons tanquam de Fide as before hath been declared As touching some other Canons of Exemption made by Popes I acknowledge that where they have been lawfully published and received in those Kingdomes Countries and States they stand yet in their full force and that except in case of extreame necessity to speak in the termes of Sotus and Conarruuias by any ordinary means or for any ordinary cause they are not sufferable of Derogation or thereunto lyable as hath beene defined in matter of Priviledges But Sir this makes nothing to the purpose of our present case touching the Venetian Lords who never yet received any Canon which was contrary to Lawes of their own making in these present daies and times 14. You produce the Canon Si quis suadente c. If any thorow the Devils instigation shall offer violence and lay violent hands on a Cleric and here you presuppose without either grant or thankes for your paines the Venetian Lords by Satanicall perswasion have with violent hands attempted and assaulted the persons of Clerics But you must be answered with a godly resolution to your Diabolicall presupposition The said Lords have not done any such Execution by the suggestion of Satan but by the perswasion of God and of honourable Justice As for your famous Canon that speakes of private wrongs and offences Otherwise the Ecclesiasticall Judges themselves in like manner should be fetcht within the power and penalty thereof So that in the Venetian Territorie the Canon is duly observed For in case a private person by the Devils instigation shall cast violent hands on a Cleric and thereby tumble into the strong Net or Toyle of Excommunication his Absolution is procured 15. The Republic you say is not in the possession of the Judicature that she exerciseth or of the Lawes that she causeth to passe in public The most learned Father Paulus in his Considerations hath most excellently proved this Assertion to be most untrue Two things only will I here annexe The Law named upon this matter was first made in Anno. 1333. and not in Anno 1536. as you have alleadged Secondly the Prince hath Authority to enact Lawes to renew Lawes or to dilate Lawes but not because Lawes are sometimes not observed For the same authority whereby a Law was made at first gives the Prince sufficient power to renew to dilate c. the said Law 16. You attribute unto the Duke that which is the Order of the whole Republic For only the Republic hath such power ad vim vi repellendam to resist force by force and to provide that by Heresie the State be not infected And therefore both because the Republic stands upon a sure ground of certaine knowledge that the Popes present Censures are in the condition of meer Nullity whereof she makes not so much as the least doubt as also because it pleads possession time out of mind she justly pretends the interdict hath never been observed in her Dominion 17. It fills not Monasteries with Souldiers as you object That 's but an old wifes tale whosoever is the Reporter much more a meer fable that she exerciseth public persecution of the Church No surely What she doth is done in favour of the Church If it be not so Hetrodox tell us what one Heresie by name is protected or so much as never so little countenanced by the Republic which pretends none other matter but only to defend and maintain her owne 18. Moreover you have matched the Republic with Arrian Princes Even so doe the Cardinals Bellarmine and Baronius I cannot forbeare to tell them and you once for all you thinke to scarre us like little Children with I wot not what Bugs I mean with Epithets of Heretiques Schismaticks The World knowes what Heresie what Schisme is well enough And might we once be so happy to have a generall Councell called of the whole Church which cannot erre it should soone manifestly appeare who is an Heretique who is a Schismatick In the mean time the Republic is neither the one nor the other and that for this time shall suffice 19. Againe you confesse the Lateran Councell is not generall and the Tridentine treats not of that Exemption which is maintained by the Authors of the contrary opinion and neither the one Councell nor the other hath come in this case to any Definitive Sentence de Fide with what face then have you affirmed the said Councell are of equall Authority to that Canon whereof it is written visum est it hath seemed good unto the Holy Ghost and unto us c. 20. I have not given the former Epithets to such as hold Exemption in large manner of Construction that is by way of comparison and similitude to be by Gods Law But onely to such as affirme it is by Gods Law as commanded in holy Scripture
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
award the said penalties they alwaies intend it of ecclesiasticall offences that such judgements and penalties are to be passed without stâ—p or impeachment by any corporall voices and to reflect or to tend onely to the reformation of delinquents Per Paternam correctionem by a fatherly chastisement or corrâ—ction a kind of ecclesiastâ—c censure and by such like penalties which are not corporall Now Sir for as much as this distinction of delicts faults offences judgements punishments and Courts is not read in written Monuments before Iustinians time upon this ground I have affirmed and am perswaded that herein I have not plaid the blind and unskilfull Cobler in seeing beyond my Last and Latchet that no such distinction of Court for which you fight and contend with so much heat and alacrity had got any the least footing in the primitive Church And because this word Court intends or implyes the civill Court it is very certain that before Iustinian granted this gracious priviledge to the Patriarch Menua no man had recourse in the foresaid cases unto Prelates as unto publique Magistrates but only unto secular Judges It is high time now to lay open your palpable errors Hetrod Well remembred hold you to your method and therein use your best skill to turne my Argent into Subtes my Whites into Blacks Orthod My chiefest aime shall be bent unto none other white Is it not first a grosse error to wrest S. Pauls words written to Timothy with a wrench of wrong and idle supposition For you suppose that godly Timothy Lorded it in some publique Tribunall or solemne seat of judgement sitting upon offences that were not ecclesiasticall and spirituall whereas you cannot chuse but know that Paul there treats not of any judiciary forme but only of ecclesiasticall and paternall correction his words are evident Against an Elder receive no accusation but under the testimony of two or three Againe Them that sinne rebuke openly that others may fear where the word rebuke armes not young Timothy with any authority to attach the body to lay in close prison to send into banishment to condemne either to the Gallies or Gallowes but onely to give private admonition for private offences and public reproofe for public scandals The text is expounded by S. Augustine according to the glosse after this manner Aliquando debes corripere c. sometimes thou shalt rebuke him that sinneth betwix your selves in private sometimes thou shalt not spare to pay his coat as it were and to chastise him with open rebuke that others may be the more affraid to runne or to chop into the like snare S. Paul therefore in that place speakes not of any Tribunal as you very fain would make us believe but of ecclesiasticall correction proper to an Evangelâ—st and to no Judge according to the same Apostles words Improve rebuke exhort with all long suffering and doctrine do the worke of an Evangelist make thy Ministery fully known Howbeit I do not deny that mens qualities degrees and the enormities of their offences being weighed in just and equall scales it is lawfull for those unto whom authority for such purpose is deputed and committed to practise Ecclesiasticall correction cum omni imperio with all Mâ—jesty and power that is without all feare as the same Apostle speakes But whosoever shall so beare himselfe in his lawfull authority hath need to be endowed furnished besides the former qualities with all those abilities conditions complements of a good rightworthy Prelate which are mustered rancked by the same Apostle Oportet autem Episcopum esse irreprehensibilem c. A Bishop therefore must be unreproveable c. For between one that fits upon the seat of justâ—ce as a Judge upon the Bench and one that hath authority to rebuke here lyes the main odds The sentence of the Judge is profitable though the man himselfe be as bad as Barabbas but he that reproves or gives verball correction seldome or never workes any deep impression or good effect in his hearer if he teach that a man shall not steale and yet steales himselfe 2. By witnesses you understand such as are juridically to be sifted by examination deposition and such other juridicall courses of Court whereas to give a fatherly admonition or paternall correction who doth not know that a Bishops bare and simple word for such purpose is held sufficient and will serve the turne to the end he be not induced to passe against a Priest by way of correction but when with great reason his conscience is duely certified and informed that the accusation or presentment hath been materially confirmed and substantially veryfied by the testimony of two or three Thus Ambrose in the glosse to the same purpose Quoniam vero non facile c. And because accusations against Priests are not hand over head to be admitted with easy credence the crime or accusation pretended and objected must clearely be proved or in case the matter be manifest otherwise that a Priests deportment or demeanour in his orders hath been very scandalous and notoriously unreverend the Apostle layes his charge upon Timothy to rebuke the party before the face of others that others may feare to runne the like scandalous and unreverend courses which manner of proceeding is very profitable not onely for such as are in orders but likewise for the common sort of People when they shall see one of the long robe a man of such Priestly marke and ranke so roundly taken up for his misdemeanors by which the holy Father S. Ambrose meanes offeâ—ces of a conversation mis-becoming the estate condition and calling of a religious person all this tends not in any wise to point at any Court much lesse at any distinction of Court but beares a reflecting eye and gives ayme with a kind of nod and bending of the head only to paternall correction 3. You argue upon a vaine supposition that even by Pauls own testimony there it is necessary for Churchmen in all temporall causes and offences to have recourse and refuge unto the ecclesiasticall Judge that were doubtlesse to approve a distinction of Court But be not you Hetrodox wilfully blind to close or to seal up your own eyes from beholding the cleare light of truth For Canon by the helpe of your own spectacles and none other You maintain that by the same Canon Church-men are barred from the benefit of recourse unto secular Judges whereas the Councell presupposes the contrary viz. That Clerics may take the benefit of that course howsoever not before they have put in practise the meanes to have the matter taken up and ordered by their Prelate whom the Councell even by the averrement of your own mouth termes the competent Judge of their cause whereas in the text or body of that Canon Point des paroles not one such word 6. The Councell held at Agatha upon your supposition that Clerics for criminall delicts fled for their lawfull reliefe to the secular Tribunals as