capacities of government in him the one spirituall the other temporall by both these hee hath supremacie and this supremacie is chiefly exercised in the calling presedencie and dissolving of the great assembly of the three States which high Court is not competently correspondent to both those powers in the King vnlesse the Parliament consist collectiue of spirituall and temporall persons which it hath anciently if the Booke De modo tenendi Parliamenti be authenticall for hee makes the vpper House consist of three States the Kings Majestie the Lords spirituall and temporall and lower of the Knights Ridleys view of Ecclesiasticall Lawes Procurators for the Clergie and the Burgesses which both answer the Kings mixt supremacie So that as he is supremus Iustitiarius totius Angliae in relation to the temporalitie so he is supremus or as Constantine truely entitled himselfe in the Councell of Nice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eusebius in vita lib. 3. in respect of the spiritualty But to returne to my present promise and purpose which was to shew how the actes of supremacie haue their effects in the Ecclesiasticall jurisdiction derived to the Clergie And I am now to shew what effect the power of promulgation of lawes hath which is in consenting confirming and publishing the Ecclesiasticall Lawes which are agreed vpon in Convocation not excluding the advice of the Parliament because the State Ecclesiasticall is not an independant societie but a member of the whole hence it is that they are called the Kings Ecclesiasticall Lawes by which the Clergie is ruled in spirituall causes according to which they exercise their jurisdiction in foro exteriori contentioso hence it is that for this last age the Ecclesiasticall Lawes of this Realme haue so well agreed with the Civill because they passe not without the assent of the supreame governour And it were much to be desired that Christian Princes would not onely permit lawes to be made and giue force to them by their authority but also that they would vouchsafe their personall presence to be Presidents in all assemblies for that end for then they would proceed and conclude to better purpose As Isidorus Pelusiota writes to the Emperour Theodosius the younger to be resident and president in the Councell of Ephesus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is that if hee would be pleased to take so much time as to be present there he did not feare that any thing that should passe could be faultie but if he leaue it all to be done by turbulent suffrages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isiodoru◠lus lib. 311. Who can free that Synod from scornfull scoffings his counsell was safe and seasonable because the cause of feare was very probable and eminent For in a Councell where there is a Monarchicall authority a supreame power in one there will be more dispatch in deliberations more expedition in executions than where multitudes of equals sit alone for they will be many of them over-wise and most over-wilfull to agree in one poynt when as every singular person will broach his particular project and propose it as a publick law with resolution to be a recusant to all their lawes if they will not be Protestants to his and so it comes to passe too often that they are forced to yeeld to one another or else no law should passe Hence is that multiplicitie vncertainty confusion contrariety of lawes in some diseased States than which nothing discovers a State to be more desperately declining though they are good in their particulars for they shew the multiplication of ill manners which per accidens begot them and they are likely to make them worse because they being appointed to amend them are disappointed and disabled by their owne crosse contrarieties As in a naturall body over-growne and over-flowne with ill humours If a Philosopher that considers onely a body neither sick nor well giues that which is good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Hippocrates calls it and when he hath done an Emperick come that considers it as sick but he knowes not of what nor the temper of the constitution but boldly and blindly giues one medicine to all for all diseases and at last the judicious Physitian come and consider it as it is and know what to doe hee must first vndoe all the other haue done before hee dare administer that which should first haue beene taken and by this time the body is either past cure or desperate conclusions must be tried to recover it Therefore happy is our State Ecclesiasticall in whose Convocation our supream Soveraign is President so that the Lawes passing with his royall consent are certaine and easie to be obeyed by reason of their rarenesse and paucitie which makes them pertinent distinct and free from confusion And therefore I doe not a little marveile at learned Baronius Baronius Annal Anno. 528. that since hee doth not deny Iustinianus the Emperour the power of making Ecclesiasticall Lawes he should so scrupulously and busily inquire what should moue him to meddle with the making of them when as I doe not doubt but the Clergie then might request him to it This last act of supremacie is to receiue appeales and giue determinate decisions and this hath its effect and is exercised in the Ecclesiasticall Courts And they doe not exercise any power that is not derived from this supremacie either immediately or mediately So that as the lawes they execute are the Kings Ecclesiasticall Lawes so these Courts are the Kings and all the processes and courses approved by his Majesties Lawes Therefore now there is no ground for a praemunire in them though the words of the Statute runne to Rome or else-where for by else-where seemes to be meant the Romish power Babylonem◠Gallicam vt Petrarch epist 123. or Court which was not then at Rome because the Popes seat was then at Avignion in France and not our Bishops consistorie For I beleeue that Statute was made to free them as well from the forraine vsurpation as any other of the King Courts as the pragmaticall sanction of France doth which was of the nature and in imitation of it about the same time by Charles the seventh brother-in-law to Edward the third But however it was then meant I am sure it cannot extend to them now vnlesse wee will deny the Kings supremacie over all causes and persons Ecclesiasticall and then they are not the Kings Courts but if we grant the Kings supremacie wee must deny that any of his Courts can incurre a praemunire A prohibition I grant may lawfully lye there because it is safe for the whole State that every jurisdiction should haue its bounds and keep or be kept in them But yet I will not say so in generall but we must admit them with distinction of prohibitions one of Law another of Fact Now that prohibition which is of Law according to the expresse words of the Statute which are commonly large enough
A DISCOVRS OF THE STATE ECCLESISTICALL OF THI Kingdome in relation to the Civill Considered vnder three CONCLUSION With a DIGRESSION discuss some ordinary Exceptions against Ecclesiasticall Officers By C. D. OXFORD Printed by WILLIAM TVRNER 1632. TO THE RIGHT HONOVRABLE WILLIAM EALRE Of Salisbury Viscount Cranburne Lord Cecyll of Esendon Knight of the most Illustrous order of the Garter and one of his Majesties most honourable Privie Councell MAY Jt please your honour to accept this present discourse as an acknowledgment of your Lordships favour toward your observant Chaplaine Calybute Downinge ERRATA PAge 8. marg for text read tit p. 15. marg Clayman r. Clapmar p. 17. l. 15. with state r. with the state p. 21. l. 28. sic stantibus r. exstantibus p. 35. l. 18. ordinar r. ordinario p. 39. l. 1. adde à farlo p. ib. Angliterra r. Anghtlterra p. 52. l. ib. 506. r. 56. p. 54. marg Hallandes affaires p. 55. l. 8. Common r. Cannon Law p. 57. l. 18. Conatus r. Canutus p. 59. marg Francum r. aerarium p. 67. l. 24. vacante prudentissimus r. vacante sèd prudentissimus p. 94. l. vlt. dele Othobone vpon CONCLVSION I. That the present State Ecclesiasticall is most convenient and best agreeing with the Civill WIth what care and cost States and Kingdomes which vphold and deriue all happinesse to man as he is a sociable and a feeble creature should be preserved none will deny especially since they are so subiect to decay and the causes of their corruptions so many Senec. 117. For the best tempered common-wealth is not of any constant continuance but full of changes and those at last will after much interchange driue it to a full and fatall period It must therefore be the care of the present age to see that it receiue no detriment while they are in it for they may be so orderly as to worke no distemper but conserue it in health and wealth or at least keepe it from decaying so fast that hauing some space to fall in it may recouer or they haue time to leaue it and not fall with it nor that fall vpon them Now the best and all that the passing present generation can doe is either to keep things in primitiue order or to reforme them to it The first of which is difficult to continue the other dangerous if long discontinued Yet Kingdomes must be conserued by the same meanes they were first established This labour and care then will be to best purpose bestowed vpon those parts which are most necessary and vphold the rest as essentiall and fundamentall being the principles of the intrinsicall Polybius hist lib. 6. originall good 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or vpon those that secure these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Now that which is the only infallible ground of these must needs be principally respected by those that are vndertakers for the publick good and that ground is true religion For though ill manners are per accidens the cause or rather the occasion of making good lawes yet they are better in the executing best when they are obeyed Now good manners cause obedience and religion naturally begets good manners But religion cannot subsist without publicke exercise and action and so the requisites of it are times places and some persons who ought to be set apart and wholly and only employed in it and they must be in the common-wealth Therefore seeing it is necessary to haue a religion to preserue the common-wealth it is by consequent as needfull to haue preservers of religion that may not overturne the common-wealth by over-ruling religion Wherefore the choyse of them need to be such that seeing they must be in the common-wealth of necessity they may be of the common-wealth for vniversal safety And yet they are to be distinguished by state and order to avoyd confusion nor doth their distinction enforce any such forme after which they must governe as may be inconvenient to the publicke civill state wherby they are to be governed The care then of the wisest must be either to preserue or restore that forme of the Clergie which is most agreeing with the Civill State and that will be the meanes to prolong the age of the state by preserving concord amongst societies which though at last it come to an end yet it may out-last our dayes that we be not vnhappy in the ruine for it is not the infelicitie of States which haue long flourished to decay or be destroyed but the vnhappinesse of those men whose hap it is then to liue and not when they did flourish Now every form of a Clergie will not fit Guic hypor Poli◠but according to divers countries they haue beene severall suiting to the times places and people The first was the originall domesticall discipline in private families before God made choyse and actually seperated a nation to himselfe Then followed the Leviticall Nationall regiment compounded and composed of and according to the ceremoniall and judiciall Lawes Both these formes were not onely by divine permission but also by injunction yet not perpetuall nor vniversall Neither of these then are the government wee must chuse because that manner of exercising religion is antiquated Wee must then consider of a forme which may be conformable to the present practise of true religion in relation to Gods revealed Will which may withall be suitable and sorting with this present state that so they may vphold each other which forme though it be not according to Gods expresse mandate in some particulars yet it is not against it but with his permission of approbation in all points Now in this choyce wee must consider our owne forme of Civill government and whether that were imposed vpon vs by conquest or by our owne consent if by free consent and of long continuance it will with more ease and desire be preserved and with greatest danger altered if by conquest the more Charters of priuiledges are granted to vs vnder it the more it is endeared to vs and esteemed happy but our forme of state is a free Monarchie erected and protected by free consent and of long continuance not imposed but confirmed and reformed to the first freedome by a happy conquest and endeered vnto vs by many Charters of wholsome priviledges Therefore we must seeke or keepe such a forme of state Ecclesiasticall as may best accord with our forme of Civill policie § 2. This present State Ecclesiasticall is the forme that best agrees with the Civill State That it is not against the Law of God I will not goe about to proue because I hope none will question it neither that it was the primitiue and should still be the government of the present visible Church because that is already proved without all contradiction by many most judicious and orthodoxe Divines But my vndertaking is as farre as God shall giue mee vnderstanding to discourse how it is most agreeable with this Kingdome All States haue alwayes endeavoured
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
as to haue a religion so to frame the exercise of it according to their owne dispositions but some with more doting indulgence haue at last changed it into that which they were most naturally disposed to and did not alter and order their inclinations by it As the foure grand Monarchies the Chaldean with whom the Persian may well be joyned these turned the acts of religion into philosophicall considerations enquiries and explications of nature The Egyptians a principall branch of these Monarchies and from whom some thinke the Chaldeans were derived and that Belus Neptuni Libiaeque filius in Babyloniam colonos ex Aegypto traduxisset Diodorus Siculus Biblioth lib. 1. ex iis Sacerdotes quos Chaldeos Babylonii vocant qui more Aegyptiorum astra observant c. These Egyptians naturally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 superstitious in religion curious in mysteries transformed religion into all kinde of superstitions and by trying conclusions and chymicall experiments vpon it conceited the substance of it into vnexpected phansies furthered by mimicall expressions leading into and leaving in mysticall mazes The Grecians by nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intelligent able to find out and loving to contend drew religion into disputes and would beleeue no more than they could finde out by search of reason and apprehend by force of fansie and that they obstinately maintained by a wanton working wit which they might with more ease doe seeing their language was so happy for expression The Romans by nature inclined to dominion fitted the frame of their religion to a Monarchicall forme vnder the Pontifices Cujaci◠Origin lis §. 1 yet they seemed to seeke a Monopolie of all the Gods in the world for they receiued and worshipped the Gods of all the nations they conquered These nations framing religion to these ends August Civit 〈◊〉 20. cap had a forme of government vnder religious persons sutable to further contriue and compasse by all meanes their particular purposes and therefore they gaue them power of a most large extent yea they were ruled by them for the Chaldeans were originally Priests and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a priest Synesiu 126. and a Prince were all one with them So the Magi amongst the Persians the Priests of Apollo at Delphos amongst the Grecians did what they would Pomp◠Orig. I. And the Romans were led by their Pontifices and Augures but it was whither they would namely to a Monarchy Wee having not the ends of these nations in our religion must not vse the same forme of Clergie For I conceiue the aime of the best and wisest with vs is to preserue the Church and Common-wealth together Now that cannot be where the state of the Clergie governs but where it is governed Our ayme being such let vs consider what forme will be best governed vnder this Common-wealth There are but three distinct formes of Ecclesiasticall government in Christendome as the Monarchicall Aristocraticall Democraticall of these the Aristocraticall is most conformable to the rule of this Realme In proving of which assertion I will not onely insist vpon the proofe of past and present experience that it is so but discourse in reason why it should be so And first in opposition to the other formes of Ecclesiasticall government what they are likely to produce woefull experience hath long since felt in the one and what we may expect vpon probable conjecture from the other is not to be desired by any that vnderstand and loue the happinesse of this Civill State For all their principles fundamentall in their grounds of augmentation in their growth of conservation in their heigth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius lib. 6. and of reparation in their decayes are most dangerous for this Monarchy and the causes of their corruption would be so incorporated into the body and bowels of the Civill State that if it fall not before them and into their hands they would goe neere to pull it downe with them when they fall Not so speake of their power which they must haue and the exercise of it either in an ordinary and lawfull course or by indulgence or vsurpation and the manner of their proceedings in the execution of it what instruments they vse in counsell and action how much they trench vpon the power vndermine the government countermine the proceedings countermand the edict and confront a Monarchy I leaue it to wise and actiue men to consider § 3. First to speake of the Monarchicall which is now the Papall government How this Monarchicall forme hath heretofore agreed with this State all know and it is not likely that it should now so well accord with it because the reasons of that little agreement then the present particular interest in which this State vsed that Monarchy are ceased for then wee aymed to enlarge our dominion by the right of succession in France by the right of conquest in Scotland and Ireland But the causes of disagreement still remaine and are in their part aggravated to an vtter opposition so that as before it was dangerous so now it is a desperate case to re-entertaine that forme of Clergie which can and will rule vs and must necessarily alter and so worke the ruine of the present state Vnder this forme this Kingdome was no Monarchie but a Province vnder a forreiner an vsurper and a tyrant This was our best condition when that Clergie ruled vs though as favourable as they could or did any Monarchy in Europe The lawes and priviledges of the land were continually broken and infringed by them especially those lawes that did most immediatly vphold the Kings prerogatiue Against them they continually promulgated particular edicts for the decrees were too generall to be applyed to occasions and therefore they added the decretals so called because they gaue wings to the decrees for quicker dispatch And wee shall finde Duare◠benefici◠Prooem that most of the Decretall epistles which concerne Iurisdiction were written to English Prelates And as I conceiue some reason might be because the lawes of this land are more contrary to the Canon Law than the lawes of any other States in Christendome being they are more ruled by the Civill Law from which the Canon is derived and so more causes might arise here amongst vs either out of the contrariety of the Lawes or out of the narrower extent of the Common Law and also partly out of the ignorance of the proceedings of this State which was then likely to be most because intercourse and intelligence with Rome for that time was abridged for Henry 2. being then at variance with Thomas Becket who was sheltered by the Pope Alexander the third permitted not any Legate to reside in the kingdome but as soone as Vivian was arrived he was questioned and that by the Bishops of Winchester and Ely how hee durst land without the Kings speciall licence And partly they writ the oftner to English Bishops because they suspected them and justly to be
the Monarchicall is best so for the settling of a Monarchie that Democreticall may be safest and so may bee the best government when a state is not settled but newly erected for then it is not safe to use severitie aâ— when our state was not fully settled Martin Mar-Prelate dared to vent his discontented humours in salt rumours Curtius Histor lib. 5. as men in rheumes In novo precario imperio noâ—statim jugum rigidum cervici imponendum but it is good taming them by degrees for then a Magistrate hath little power to command much lesse to restraine therefore it hath bin found the best course to let theÌ„ take their course for Mos est vulgo Tacitus Histor lib. 1. Livius lib. 11. Histor mutabili subitò tam prono in misericordiam quà m immodicum saevitiâ fuerat and so by indulgence finde lascivire magis plebem quà m saevire And I am perswaded that this discipline was onely chosen for that time when the Apostles were under persecution and there were no Christian Magistrates to repaire to for justice then they appointed some to judge betwixt brother and brother But it doth not appeare that they were Ecclesiasticall Iudges certainly no such lay Elders in the Apostles times as the Separatists now plead for but rather civill arbiters to make agreement betwixt them in civill controversies 1 Cor. 6.4.5 Histor Con. Trid. lib. 3. as may appeare out of the place though the author of the History Concil Tridentini make that a ground for Episcopall jurisdiction For the Apostles had no reason to delegate the cognizance of spirituall causes because in those dayes they were so few and needed no proofe to them because they had the gift of discerning of spirits and of knowing of secrets hauing the gift of prophecying And I doe not beleeue that it can bee proved that they gaue commission to any to receiue accusations which is much lesse then to giue judiciall censures and decisions to any but to the Bishop of Ephesus 1 Tit but I intend not to enter into controversies neither need I seeing so much hath beene already written in that point to good purpose by many most reverend Fathers of our Church But to returne to my intended discourse this state of the soveraigntie of these seniors I grant to be of some use in free Cities in time of tumult and so I doe beleeue Mr Calvin intended it yeelding to a popular partie and not as an vniuersall perpetuall government for all truely reformed Churches For though such a wise respected man as hee was might during his time preserue it in the same correspondent conformitie to his proposed patterne as Polibius saith the Thebane Democracie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it stood not by the good temper of their pollicie Polyb but by the vertue of their governours 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so might it bee said of the Geneva Church government that though for the transgression of it many were the rulers of it being a Democracie Pro. 〈◊〉 Nil m prodest curari lunt Senecâ— Machâ— lib. 1. â— yet by a man of understanding and knowledge the state thereof was prolonged for hee could doe much to appease seditions as Franciscus Bishop of Volterra sooner settled a tumult in Florence by his graue presence then the Magistrates could by the weight of their authoritie It is plaine then out of this that hath beene spoken that this government by popular Presbyterie is not for this state § 6 Neither of these being convenient and there is but another and it hath alwayes beene the government in this state it must necessarily follow without any more proofe that this is most agreeable with the Civill Those that are no well willers to our state haue strucke at our Church gouernment with which there is such a happie hartie vnitie as dare bid the world doe as shee would bee done to as that absolute Statse-man the Earle of Salisburie replyed And it is no marvell since it is not onely the primitiue ancient government of the Church in generall but the onely forme also that euer was received in this state according to the ancient lawes of this Iland though it seeme to be brought in under Henrie the eight when it was onely reformed from the euils and restored to the former state for our Clergie was never of right subject to the Pope neither as he was Patriarch to the West nor in his province And this Aristocraticall forme hath most happy qualifications that dispose it to the peace profit honour safety of this state I could now wish with Tully when hee was to write against Democraticall Agrarian lawes Ad Atticum l. 2. epist 3. Vtinam Theophrastum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Vbi multa scribuntur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 After this Kingdome with many others had long laboured under a lingring consumption being continually sucked and in a manner exhausted by the continuall supplying of the Popes Exchequer which drew away the vitall spirits weakned the sinewes of warre causing extensions and convulsions and farther also in respect of domestique peace it had not a just proportion of power to exercise its onely civill and lawfull authority insomuch that many who should have knowne what in possibilitie of state might bee done for a recovery of a temporalitie distempered and distressed by the malignant humerous power of an usurped spiritualitie like a feaver in the spirits caused by obstruction 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hippocrat lap 5. prog All those men gaue it over for desperate some conceiving the disease incurable in its owne nature because that non obstante the helpe of so many strong statutes and purging provisoes the distemper was as violent and more virulent then before they saw no safe and certaine course of preventing physick for it was so far spent as that it seemed to haue passed the period of curing but as when men are brought to a desperate point they will trie conclusions and they that drive them to it doe often repent it so the Pope putting and passing our state upon desperate hazards forced it to trie its strength which is soone found necessitie driving and opportunitie drawing Acerrima virtus est quam ultima necessitas extundit Senecâ—a men l and so it cast such an vnreasonable vnruly rider who thought and so did all christendome that hee had sitten closer and faster upon our skirts and would not beleeue that it was possible for a Parliamentary power representing the state euer to haue beene able to dissolue the great Abbies though they durst fully resolue it untill they saw them begin with the little ones then they had reason to grant it possible Arist R lib. 2. c 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yea they found it fully finished and that on such a sudden that as it wrought admiration in the beholders so it procured safety to the actors For in actions of that nature haste onely makes good speed That
called litera Pisana but when the Florentines tooke Pisa as Laurence de medicis told Politian it was translated to Florence and made Pandectae Florentinae Angelus Polit. epist lib. 1. estist 4. ibi verò in curia loco celeberrimo summa religione servatur and they did not use in those dayes in the first erecting of their Dukedome to esteeme any thing which they found not beneficiall for the state But I leaue the commendation of the knowledge of the Civill law to those that know it better and haue found the helpe of it in long publique practising and betake my selfe to my vndertakings to discard some exceptions against the professours of it who are Officers practising in Ecclesiasticall affaires They are excepted against by some that are of the faction of irregular Protestants Excâ— that though the Church of England approoue not the Geneva discipline yet the principall point is practised in it in these our Lay Elders thus they seeke to defame our government by reporting it to bee confused and wanting vniformity But to diâ—â—â—â— and discover this groundlesse exception the very supposition whereon it is grounded is absolutely false for though we will not deny that our Ecclesiasticall Officers be Lay men yet wee will not grant them to be Elders of the Church we haue no such Church Burgesses neither doe they take any such Eldership vpon them since they know full well that it belongeth only to spirituall persons which they confesse and professe they are not as that profound Civilian Dr Couzins D. 〈◊〉 his aâ— proceâ— high sion cap. 2 wee are no spirituall persons as some tearme vs but Ecclesiasticall now in my understanding there is as much difference betwixt a Spirituall person and Ecclesiasticall as betwixt Ecclesiastes and Ecclesiasticus the one of which is Canonicall the other Apocryphall though he be a Canonist I dare without any scruple grant them to bee Lay men not onely because it takes away the ground of the exception but also because it is not any hinderance to their being Ecclesiasticall Officers for the Cannon law which is very strict in this point admits a threefold division of Ecclesiasticall persons as primò in sacris secundò in sacris sacerdotio tertiò nec in sacris nec sacerdotio vt monachi legistae ecclesiastici and such doe the chiefest among them account themselues for they are well contented to goe for Commons in the high court of Parliament Yea a most eminent Chauncellour of late refused when his Bishop would haue chosen him a member of the Convocation house and that because hee held himselfe a Lay man and so they liue in our particular Parishes as other Lay Parishioners paying Church dues and are alike subject to the jurisdiction of their appointed Pastours in foro conscientiae and in thus doing they doe declare their exact knowledge in the Cannon law and pure practise of the Civill for by the Common law where Doctores divini humani are opposed Guymer Comment in prag sanction proaemio Brissonij Lexicon 11. Doctors of the Civill law yea Cannon also are counted humane and Lay Doctors for the Clergy as Brissonius defines it out of Suidas is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But fully to cast of this exception I deny them to bee Elders of our Church for Elders here I vnderstand in relation to Church government and in that sence there are no Elders with vs in our Church but Ordinaries and our Ecclesiasticall Officers are not Ordinaries neither doe they vsurpe any such power but their modesties are many times forced to take the title and tune of the title from some obnoxious fawning Clergy men who are more sordidly slavish then they would haue them so that though of discretion they will not say to them as Tyberius did to the servile senate Tacitus Annal. lib. 3 Extrav fol. 22. tit execrabilis §. caeterum Linwood lib. 1. de sequestrationibus S. Thom. Smith de repub Ang. lib. 3. cap. 8. O homines ad servitutem paratos yet they cannot chuse but thinke so for they know that by the Cannon law there is no Ordinary Iune but a Bishop per Ordinarios jure intelligimus Episcopos neither any by priviledge and custome but a Deane or an Archdeacon And they doe as fully understand that in this Church there are none but what the Cannon law allowes as S Thomas Smith in his discourse of the Common-wealth of England saith by an Ordinary we understand a Bishop or sometimes an Archdeacon or a Deane who are so by priviledge or a long prescribed custome Now they are not Archdeacons nor Deanes as I would they were and many of them haue beene heretofore as Petrus Blesensis Archdeacon of Bath who was Chauncellour of Canterbury and Chaplaine to Henry the second for then this exception and all others would bee of no force But they are now no such Ordinaries as are Church Elders with us I will grant them in a large sence to be Ordinaries Cor prâ— tit §. Gla as Guymerus the pragmatique Ordinarios latè volo collatores beneficiorum patronos Ecclesiasticos as Glanvill calls Patrons advocatos Ecclesiae in such a large sence it is properly extended to these Ecclesiasticall Officers but Ordinaries properly they are not and that appeares out of the offices they execute in relation to these Ordinaries for they are their Deputies Deligates Vicars Officialls or Commissaries which are officers distinct and derived from their Ordinaries of all these the Bishops Vicar hath most reason to be tearmed an Ordinary yet he is none not onely by the Civill law which makes him a minister of his Ordinary Vicarius est qui suo Ordinan subministrat Bri verâ— Pra con veâ— Par tali dict Duâ— spec 1. tâ— dele Sir Riâ— of 〈◊〉 and but also by the Cannon law as Prateus Vicarius Ordinarius distinguuntur nam vicarius est quasi servus in peculio or as Suidas calls him à substitute 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Panormitanus jurisdictio Ordinaria non extinguitur per mortem illius qui dat jurisdictio vicarii est suspensa suspenso Episcopo and Durantus affirmes as much Vicarii nequeunt officia sua exercere Episcopis eorum excommunicatis and therefore they doe well in clayming no such power as Sr Thomas Ridly learnedly discovering the originall and reason of their practise in the Church concludes that Civilians or rather Legists who were anciently called Church Lawyers or Ecclesiecdici were brought into the Church to direct Bishops and the Chauncellours at this day are the very same in office with them being assistants of the Bishops in their jurisdiction Sir con tion jestâ— And Sr Francis Bacon in his cautious consideration of Church government agrees with him in the approbation of a Bishops being attended by his Chauncellour who should be learned in the Civill law for his better instruction in points of formality in the proceedings and courses of their
Courts And for the same purpose should Deanes and Archdeacons haue their Officialls and Commissaries to inable them to runne through the multiplicity of causes to cut off or shorten delayes which in all businesse especially Ecclesiasticall are tedious and odious and indeed none are more able in this case to assist them and reduce causes into order brevity and paucity as Thomas Aquinas saith Thomas Aquin. praefaâ—â— to his summes he compiled his summes to compose and compound controversies take up and take away all questions And therefore I doe not a little wonder at Dr Cowell who was a most able Civilian that hee should account Commissaries or Officiales foraneos onely vsefull in petty peculiars D. Cowel interpretaâ—â— verb. Commissary Duaren de benef officijs Eccles exempt from the jurisdiction of the Archdeacon otherwise to be superfluous and a needlesse vexation and oppression to the Countrey surely hee meant it of some such scandalous Courts as Duarenus another learned Civillian complaines of Auditoria Vicariorum officialium Episcoporum quaecunque profana tribunalia imposturis strophis forensibus longè superant but let him thinke what hee will I am sure wee see of what good use they are and yet they are not Lay Elders of the Church Exception 2 Excep 2. Is that the power of jurisdiction Ecclesiasticall cannot be granted to Civilians that are meere Lay-men I could soone answer this exception by denying them to be meere Lay men and so I would if I had no other way to avoyd it But I am willing to giue them satisfaction and not to cavill and therefore will answer punctually and that I may so doe and they so apprehend it let them but consider with me a two-fold power of Ecclesiasticall Iurisdiction Linwood lib. 5. tit ne praelati vicar verb. ad firmam Ordinary and Delegate the later and lesser of which may be lawfully granted to them especially if wee admit the differences and degrees of their commission which are approved and practised in our Church government both in relation to the power that grants them and in respect to the extent of the grant First for the power granting them they are all originally derived from the Crowne but some haue their power more immediately as the high Commission haue it vnder the broad Seale others receiue it more mediately from their Bishops Deanes or Arch-Deacons so for the largenesse of the Commission which is ad vniversitatem causarum tanquam Ordinarius as the audience of high Commission and not without good reason since no cause is to be there determined at least not sentenced without the consent of foure of the Quorum which must be as I am informed Bishops There is also a speciall Commission of Oyer and Terminer in some particular causes and lastly a Commission which according to Law is restricta ad instantia Linwooâ— tit de verb. ofâ— alis which Linwood Officiall of Canterbury saith doth belong officialibus principalibus which wee call Chancellours Yet I doe not beleeue by his leaue that they are so restrayned as to a bare cognition without a definitiue sentence though the phrase that is vsed to expresse busines of instance be matters of Ecclesiasticall cognizance for Cognitio non est jurisdictio Cujaciâ— orig Iu◠§. Consâ— especially now since the Lawes haue ordered that if they be not in sacred orders they must be assisted by a surrogate who is a Minister and hee is to pronounce sentence as principall Iudge which practice hath made some of opinion that anciently they were assistant to the surrogate as assessours which seemes probable because the exact knowledge of the Law is expected from an assessour not from the principall Iudge according to the most conscionable Casuists Ignorantia juris non est peccatum in judice sed est in assessore Navarâ— Iudicis as the Masters of the Chancery who are assessours to the Lord Chancellour or Keeper there is required exact knowledge though not in the superiour Iudge as in the assessors of the Praetor amongst the Romans Cujâ—cius obser lib. 23. c. 40. Si Praetor per imperitiam iuris iniquum ius statuerit non punitur assessor eius punitur quia adsessor se pro iurisperito agit So that though this opinion be not true because surrogates are not of such antiquity yet I perswade my selfe without any doubt that they were and still are tanquam assistentes assessores Episcopis Archidiaconis though they haue also a delegated power And this kinde and degree of Ecclesiasticall power may be granted to them though they be meere Laymen and I beleeue our Church would not haue disliked the Geneva government so much if they would haue chosen such for their Lay-Seigniours as had knowledge in the Ecclesiasticall Lawes as if Doctor Hottoman professour there and Reader of the Civill Law had beene joyned with reverend Beza then Divinity Reader Exception 3 Another Exception of like nature and moment arising from the former is That vnder the colour of a delegated jurisdiction they take vpon them Episcopall jurisdiction and performe all the offices of a Bishop in relation to Ecclesiasticall government This Exception is not peremptory but dilatory and declinatory full of impertinent surplussage vrging nothing or that which is false for no man will vndertake to answer what they doe but what they should doe iure nostro Ecclesiastico I am sure iure nostro Canonico Anglicano publickly knowne and by the old Canon Law which may here be practised where it is not contrary to the Lawes of the Land they are not to exercise any such power 25. Hen. 8. c. 3. Summa bullarij in Pio 4. as doth personally belong to a Bishop either as he is Dioecesane or as he is Ordinary in puris spiritualibus neither doe I finde that ever any Vicar did vsurpe or desire any such power but onely Cardinall Wolsie who desired Clement the seventh suo vicario vniversale in Francia in â—ngâ—â—terra in Germania mentre stava in prigione Guicâ— hist li his Vicar generall in France England and Germany during his imprisonment which he could not doe by Law being his Ordinary and suspended if not ab officio yet á beneficio and if it had beene lawfull yet the Pope had betrayed his weaknesse much to grant it with that condition during the time of his imprisonment for the Cardinall would without doubt haue endeavoured to keepe him there still to continue his vicarship And moreover this I finde that by the Canon Law sede vacante the Deane or Chapter is successour or rather administratour to the Bishops in their jurisdiction and guardian of the spiritualties and no marvell for they are called fratres Episcopi Cardinales Papae they can dispence in causis Episcopo reservatis and call Convocations Laeliuâ—us de pâ— capitu to which the Bishops Vicar may not be admitted possunt condere revocare statuta And during the life of the