for him to get began to practise the like domineering humour upon the other Potentates of Christendome sending his letters of claime to the Kings of France England Scotland Denmarke Poland Hungarie But being opposed by Philip le Beau King of France hee did flie backe to the Emperour for succour who then was Albertus the first Emperour of the house of Austria for though his father was Emperour yet hee was not of the house of Austria neither of the old Marquesses nor late Dukes but Earle of Hansburg who had conquered the Dukedome of Austria for his sonne This Boniface the Spaniard first began the faction betwixt the Kingdome of France and the house of Austria by giving the Kingdome of France to Albertus These two better agreed then any because the Pope had taken off the Emperour from seeking his owne right in Italie by imploying him as his champion to enlarge his dominion in other Kingdomes and partly because the Emperour had good hope to continue the Empire in his familie as it hath neere foure hundred yeares From which time the Emperours and Popes disagreements were not so frequent but onely when some French favourers were Popes and they sate at Avinion as Clement the fifth with Henry the seaventh and during the times of the Councels of Constance and Basill But by reason of the schismes in the Roman See they did one another neither much good nor harme vntill the time of Alexander the sixth a Spaniard who was exactly ambitious a great lover of his countrie and one that did much for it Anonymus Hisp in vita Alex. For hee joyned with Ferdinand the first Catholick King helping him to subdue Spaine and therefore first brought in the Inquisition Contra los Iudios y mores que le aviantornado Christianos which Caranza Arch-bishop of Toledo saith Ferdinand conceived himselfe bound in conscience to vse by vertue of an oath taken with an imprecation by one of his predecessours in the fourth Councell of Toledo Baronius Annal An. 637. which Baronius so much commends This Pope also bestowed vpon him the then discovered Indies with many other favours and for his sake and in opposition to the French hee was as fast a friend to the House of Austria as his deepe dissimulation would suffer him Philip. Cominoeus lib. 8. and the rather because they had lately matched with the House of Burgundie which much weakned the French force and strengthned their factions Thuanus hist. lib. 4. But then most when Philip the heire of the House of Austria and Burgundie incorporated himselfe with Spaine So that I will conclude these things considered that this forme is onely safe and convenient for those kingdomes that propose conquests and can rule it as the protectors of it § 5. So then seeing this Clergie is not for vs I will consider of the other which for distinct proceeding we may call Democraticall When the three Prime Potentates of Christendome were Charles the fifth Henry the eighth Francis the first such as deserved and desired to haue all the soveraigne power that could of right belong vnto them and yet were contrariwise vsurped vpon and deprived of all their eminent supremacie in those things that most concerned them perceiving some beginning to question the Pope a course of relieving themselues they began to vrge a Councell for reformation not onely in doctrine and manners but also in point of Ecclesiasticall government But it was so long vrged by them to no purpose that Henry the eigth advisedly wrote to the other That seeing the Pope had so long put it off Histo Trid. and now intended to hold it within his owne territories it were the best course for every one to reforme his owne Kingdome and he did so with the advise consent and desire of the Church and Statâ— representatiue No sooner was a reformation in any degree setled but presently it was excepted against by some that favoured the Church of Geneva as not fully reformed because not agreeing with their new neat platforme that was vrged vpoÌ„ vs as the only Apostolical government of the Church But I marvell how such an exact government should be so suddenly framed or else which is more strange that they could so conceale their happy invention as that Francis the first a King of France that searched into his government as much as any should not know of it For I am very much deceived if hee had not beene much mistaken knowing of this project to desire the Councell might be held at Geneva being it was Diametrically opposite to the Romane But our State had no reason to receiue it Hist Trid. For though it was necessary not onely in reason of State but also out of conscience that after we perceived the indisposition of the Romane Clergie to reforme themselues which they seem to hold impossible For though every Cardinall takes an oath in the vacancie yet it cannot binde him when he is Pope wee should then performe our duty especially seeing it stood with the publick good Yet neither of these considerations did engage vs to accept of such a forme of Clergie as seemed to runne a cleane contrary course seeing we propounded not an innovation but a reformatioa that being as dangerous as this was necessary it could not here be entertained without an vniversall innovation Now all stirring changes are dangerous especially when the body of the common-wealth is full of diseased discontented humours Because all alteration sets the humours a working and one humour being a-foote stirs vp all the rest either alluring by sympathie or provoking by antipathy and when they are once a-foote it is to be feared that they will not onely disburthen the body of malignant oppressing cruâ—â—ties but weaken it in the most principall parts causing it to receiue a disposition to the like distemper vpon every small distaste But it is most dangerous to innovate in that part of a common-wealth that is most essentially actiue and hath beene lately recovered especially if the matter proposed doe minister any cause of relapse Both which seem too true in this new discipline which gaue an occasion to the Clergie to revolt in the denying the supremacie which they lately acknowledged And being a forraine French devise might seeme to come within the compasse of a praemunire for intrusion as well as that of the Church of Rome for vsurpation But this was only propounded not brought in and that by men who were by some beleeved to be faithfull to our State And it may be they had no dangerous aime in it yet it would haue beene very dangerous for our kingdome since it did necessarily induce an alteration in the profession and practise of the lawes which by reason of their long vse are as it were naturalized into the manners and disposition of our nation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Rhetor. l. 2. cap 11. It must necessarily haue conferred ruines vpon our schooles of learning and hospitals
naturall inclination is not so perniciously pragmaticall they are farre from the tricks of tumbling projecters and all actions proceed either from our generall end or particular inclination and this inclination is fortified and confirmed if not formed and framed by their studies which haue a great influence into the disposition I haue not in this discourse entred much into the commendation of an Aristocracie in generall preferring it before a Monarchie partly because I feare lest some should serue me as Castellanus a French Phisolophy reader who as I conceiue was Ramus his Tutor served his antagonist Bigotius For when Francis the first was desired by some of his Nobles to reade Bigotius his Disputations Castellanus told his Majestie he was an Aristotelian and Aristotle preferred an Aristocracie before a Monarchie Thuanus hist lâ—b 6. so tooke off the Kings affection from him But he might be so excused because I doe not beleeue it was Aristotles judgement but his policie to disswade all others from affecting it that his Master Alexander might effect it But I did purposely forbeare it because it was not my proposition that an Aristocracie is simply a more convenient forme of State than a Monarchie but that this Aristocracie is more convenient for this State at this time considering that it was received with an vniversall consent and desire of all and hath its right according to the lawes is most easily ruled by them not easily nor suddenly disturbed or disturbing and most easily reformed if it bee disordered so that I may now vndeniably conclude that the present state Ecclesiasticall is most convenient and best agreeing with the Civill A DIGRESSION DISCVSSING Some ordinary exceptions against Ecclesiasticall Officers THough none bee more loath and fearefull to come within the lists of controversies yet seeing all that I haue already positiuely discoursed is not onely controversed but also contradicted by these exceptions I resolved to dissolue and dispell them least they should by a darke reflexion cloud my cleare proceeding And I am not a little confidenced in my purpose when I consider whose cause it is that I vndertake even the most able advocates of the Church such powerfull pleaders as are infallibly sufficient to defend both their cause and mee their poore defendant for they are absolutely able if their conscience would but dispence with their vnderstanding to make a bad cause if not good yet to put it in a good case by making it plausible so that I am encouraged to vndertake it with this consideration that where I am found weake and wanting they are sufficient and ready to succour and supply if they shall apprehend the exceptions peremptory and pertinent and any impeachment to their practise and power As they that haue made triall of their strength haue found D. Couzius his apology for proceeding in high Commission though they were of the strongest and most popular partie which they the more wondered at since they knew they had but few friends and themselues small in number especially in the beginning of the reformation when there was such scarcitie of Civilians that the Vniversities tooke little notice of their degrees or profession or the Courts of their practise but now wee haue a most happy and hopefull increase and it were to be wished that the land were more stored with able Civilians though they â—â—e not pragmatiques I meane that the knowledge of the Civill law were more regarded though the practise keepe but the same degree of respect for then should wee haue more able Common-wealthes men at home and more absolute Statse-men abroad for all the nations round about are ruled by the Civill law as we are by the Common law onely they haue some particular decrees manifestations and sanctions as wee haue statutes and Acts of Parliament and so by that law the treaties we make for matters in question are to bee decided by that law that which is determined by consultation and agreed upon is to bee concluded so that it must needs bee that he that is well seene in the Civill law is best able to treat with them with more honour and lesse danger to the state for in them there is onely the feare and danger of perfidiousnesse whereas the other may want honesty and ability both though their instructions bee never so punctually accommodated And this is one maine reason as well as the Popes power why many Deanes Bishops and Lord Chancellours who were Doctors of the Civill law were sent Embassadours when the Nobility had not so much law and learning as now they haue so that for this last present age we haue not lost so much in treating with France where the Civill law is most practised Comâ— 11. li as to confirme or continue the proverbe which I finde mentioned in Phil. de Cominaeus Paectio nulla inter Gallos Anglos in which the French did not get the better adeoque proverbio dicitur apud Anglos quoties cum Gallis proelio certaverint victores plerunque fuisse quoties verò cum illis pacti sint detrimentum semper aliquid accipisse which was most verified from the time of Edward the 3. to Queene Elizabeth but it is probable their over-reaching was much helped forward by dishonesty where they found any little want of ability but grant it were the disability of our agents especially in the ignorance of the proceedings and advantages of the Civill law in buâ—â—â—es of trans-action wherein the French were defendants and passiue yet it was not any honourable advancement to them though it were some small disadvantage to us for it is a disgrace for a Prince to stand strictly vpon tearmes trickes and turnings of law in the interpretation of treaties as Maurice Duke of Saxony told Charles the fift Carolus Molinaeus consâ—â—lio secundo in causa Philip. Lond. graue Hassiae when contrary to agreement he detained Philip Landgraue of Hessen at ego saith he te tanquam Imperatorem non tanquam iuris-consultum legistam volo pactiones foedera interpretari But since treaties are too often so interpreted it is in all probability a great assurance of safety in treating to understand the Civill law at least in the proceedings and hence it is as I conceiue that in France and Italy it is so much esteemed so that in France most of the ancient Nobility were students in it and had amongst other priviledges that they may take the degree of Bachelour at law in three yeares as it is plaine in the pragmaticall sanction which particular is also confirmed by the Concordata Galliae Prag sanctio tit de collationibus Concordat Galliae tit idem by Leo the tenth Bacchalaureo iuris Civilis si ex utroque nobilis triennium satis erit In Italy also it hath beene highly esteemed especially in the first reâ—â—iving of it under Lotharius secundus in the yeare 1125 for he found a coppy of the Digest and gaue it to the Pisans which was then
depend vpon the power of supremacie For though these powers of order and jurisdiction be immediately derived from Christ the misticall head of the Church in respect of their institution commission internall qualification and deputation to persons to performe them yet they are mediately derived from our Prince the ministeriall head of our particular Church in relation to their execution For the power of order cannot bee lawfully exercised in these dominions without the licence and permission from the power of jurisdiction which power is originally derived from the Kings dominion 1. Eliz. cap. 1. over Ecclesiasticall causes and persons So that it is plaine in generall that they are dependant on his Crowne and supremacie To omit the jurisdiction in foro conscientiae that depends vpon the power of order I will for a more particular view of this dependent derivation consider the severall proper acts and workes of this Ecclesiasticall supremacie which as I conceiue may be reduced to these foure The first worke is reformation of the Church in Doctrine manners and ceremonies The second is convocations of Councels and Synods for the reformation The third is promulgation of the lawes and edicts proceeding either from his Highnes pleasure in publick declarations or the Canons constitutions decreed or confirmed in his Councels The 4th is in receiving of appeales giving definite determinate decisions restitutions and deprivations belonging to causes persons Ecclesiasticall Now all these acts haue their effects in the power of jurisdiction for the reforming power of it is ordinarily perpetually derived to Archbishops B. de iure to Arch-deacons and Deanes de consuetudine to be executed by them in their Provinciall Trienniall and Annuall visitations but it is principally restrained to the correction of manners This power is extraordinarily ad tempus granted to the Church representatiue in Convocation It is not turned into a running regencie rolling round to every particular Presbyter though it be not an ordinarie standing court the calling of which is the second worke of supremacie To this Convocation thus called there is given power and licence to deliberate of to order and doe all such things as shall concerne the setled continuance of the doctrine and discipline of the Church of England obtaining his Majesties royall consent in the proceeding and determinations as it is plaine in his Highnesse declaration And the lawes they make take their first force from the worke of his promulgation But before I proceed any farther I must of necessity take a little time though to some it may seeme an impertinent parenthesis rejoycingly to consider the gratious countenance our pious Prince so freely shewes to this discountenanced disabled house of Convocation Little did any thinke no not that able absolute States-man the last Lord-Chancellour though wished it that his Majestie could haue beene so fully and faithfully informed of the ancient power and priviledges of it as to thinke of restoring them seeing not onely in the opinion of the people but also in the practice of the lower house of Parliament it hath beene long dismembred from that high Court and lost all the power and priviledges as escheated to the same insomuch that it is questioned by some whether ever it was a member of the Parliament or no. But it seemes his Majestie did soone apprehend it to be an essentiall part of it and vpon a short search discovered that though heretofore it was a member whose nerues were wrested distorted distracted and racked from its naturall head by extention to a forraine yet there was no dissolutio continui as the Physitians speake from the head and therefore not from the collaterall members and seeing it was but a discontented discontinuance that did cause it to be suspected and suspended it being now againe contracted and knit most firmely to the head is vnited as closely to the members may safely exercise and enjoy all the power and priviledges that did of right belong vnto it with the Parliament for though it was no reason that it should haue the priviledges of the Parliament when it was distracted from it and assembled without it by vertue of the Popes Legates writ and so the power and purpose of it was forraine and justly came within the compasse of a Praemunire for the Clergie then was no true member of the common-wealth and so the Convocation cut off from the Parliament yet when as it is now assembled with it by the same writ of the King and the Parliament is not compleate without it being one of the three Orders and that State which makes it haue competent power in matters Ecclesiasticall that it is not a meere temporall Court and that in the judgement of those that had least reason so to esteeme it for wee finde 1. Philip. Mariae c. 8. 1 Phil. Mar. c. 8. That the Legate of Iulius the third tooke great care to haue Statutes repealed made against the Popes supremacie wherein hee granted them to be authentically made and consequently that they had Ecclesiasticall power to enact them otherwise by reason of nullitie they had been cancelled and abrogated in themselues And Antonius de Florebellis an Italian Prelate in his Panegyrick de restituta religione in Anglia saith it is done honorifico vniversi Anglorum consilii decreto in which speech Florebeâ— rat ad Marian he supposed their power to decree it which he would not haue done if hee had held it to be a meere temporall Court and he must necessarily haue so accounted it if hee did not reckon the vpper and lower Convocation Houses as members of it exercising equall power with equivalent priviledges As it was plaine in a particular example in that Parliament Fox Act pag. 16 for when Arch-deacon Philpot was questioned for some words that passed from him in the Convocation House hee pleaded that hee was priviledged to speake them since the Convocation was a member of the Parliament and this plea was not refused but neglected For they were not ignorant what was enacted by Henry the sixth to wit that all the Clergie 8 Hen. which be called to the Convocation by the Kings writ shall fully vse and enjoy all such liberties as the great men and Commons of the Realme haue that are called to the Parliament And as they had some priviledge so it is plaine by a Statute vicesimo quarto of Henry the eight 24. Heâ— though now abrogated that they had once as much power in their receiving appeales from inferiour Courts Ecclesiasticall when it was a Praemunire to appeale to Rome or else-where The words of the Statute printed in the yeare 1550 are The partie grieved may appeale to the spirituall Prelates Abbots Priors and Proctors convocate by the Kings writ in Convocation So that the restitution of the Convocation was a worthy consideration in his Majestie seeing it is as neerly and deerely annexed to his supremacie as the Parliament is for his Majestie having two