sufficient to shew that whatsoever the Canons about this matter had been before the Statutes of H. 8. and Reformation of Religion that soon followed and the Statutes thereupon the nature of the crime and the whole current of the Laws about it are altered So that had this Office been given to a Clerk and not to a Layman yet as the Laws of England now are it could not have been Simony although the Lessee had exercised by virtue of his Deputation all those Functions and that Jurisdiction which the Ancient Canons called Spiritual For by many Statues made in the Reigns of H. 8. Ed. 6. and the Queen those Powers and Jurisdictions are made Temporal and so no longer of that nature which could render the Contract about them liable to the imputation of Simony which cannot be committed but when that which is sold is Spiritual The 26 H. 8. 1. Gives the Kings of this Realm full Power and Authority to Visit Redress Repress Reform Order Correct Restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended any Usage Custom Foreign Laws Foreign Authority Prescription to the contrary notwithstanding Also the 37 H. 8. 17. Declares the same Power to be in the King and to exercise all manner of Jurisdictions commonly called Ecclesiastical Jurisdiction And that the Power the Pope claimeth is directly repugnant to your Majesty of Supream Head of the Church and Prerogative Royal your Grace being a Layman and that the Archbishops Bishops Archdeacons c. have no manner of Jurisdiction Ecclesiastical but by under and from your Royal Majesty Some evil disposed Persons little regard the Proceedings and censures Ecclesiastical made by your Highness and Vicegerent Officials Commissaries Judges and Visitors being also Lay and Married Men and think them of little or none effect Forasmuch as your Majesty hath all Power by Scripture to hear and determine all manner of Causes Ecclesiastical and correct Vice and Sin whatsoever and to all such Persons as your Majesty shall appoint thereunto Be it Enacted That Doctors of Law may lawfully execute and exercise all manner of Jurisdiction Ecclesiastical and all censures and coertions Albeit they be Lay or Married Men. 1. Ed. 6. 2. Affirms all Authority of Jurisdiction Spiritual and Temporal is derived and deducted from the King's Majesty And all Courts Ecclesiastical are kept by no other Power or Authority either Foreign or within the Realm but by the Authority of his most Excellent Majesty All which Statutes among many more were repealed by Queen Mary being contrary to the Doctrine and Interest of the Romish Church who holds for the most part all these Jurisdictions to be of Divine Right and their censures to be Sacerdotal and the Power Ecclesiastical to be Ex sacrorum Canonum dispositione as the Popish Clergy speak in their submission to Cardinal Pool But the Reformed Protestants speak quite otherwise as Dr. Sanderson doth who saith of the Exterior Jurisdiction it is not from God but from the King wholly and entirely from him as the sole Fountain of all exterior Jurisdiction Spiritual or Temporal and consequently not of Divine Right So saith that Bishop for indeed if these Jurisdictions were of Divine Right they could not be deputed to others but the exercise must be limited to the Persons alone in whom such a right is inherent One Statute therefore saith well They are called Spiritual not that they are so it is Popery to Affirm it and a virtual denying the Kings Supremacy and renouncing the Oath of it and a Lopping from the Crown one of the principal Branches of its Prerogative preheminence in all Causes Which the King can never have if exterior Jurisdiction be Spiritual from God and the Pope not from the Crown The Book of an Anonymous Author called Episcopal Inheritance saith 't is a Popish Yenet to Affirm the Ecclesiastical Jurisdiction to be distinct from the Civil which Bellarmine asserts to set the Pope above Kings and to exempt the Clergy from the secular Powers In Queen Elizabeths Reign this Power is Affirmed to be in the Crown and 't is Enacted That all Spiritual or Ecclesiastical Power or Authority for the Visitation of the Ecclesiastical State c. Be united and annexed for ever to the Imperial Crown of this Realm But the Canons Affirm it to be in the Pope as a Spiritual Head and have therefore called it a Spiritual Power which being now by these Statutes reduced to its true Original must be no longer Spiritual but Temporal for the King hath it as a Layman saith the 37 H. 8. 17. And may invest Laymen with it who are no ways capable to give or receive it if it were Spiritual So that whatever it was heretofore when it came from Rome it is now Temporal and a part of the Kings Temporal Jurisdiction as Impropriate Parsonages and Vicarages become Temporal Things and Lay-fees now they are appropriate to Lay-men which before were Ecclesiastical and Spiritual And so the nature of such Jurisdictions as of the Benefices is altered with the alteration of the Tenure So it would have been Simony to have sold the Six and the Sixty Clerks places in Chancery when they were all Clergy Men or the Advocates and Proctors of the Commons when they were all bound to be Clerks which made Altissiodorensis and Aquinus say it was Simony for the Advocate to take Fees for pleading but now they are all Laymen there is no colour for such a censure There is yet remaining one and a very strong Argument that letting a Jurisdiction cannot be Simony by the Laws of England and it is this Neither that Canon of Yours nor that of Lateran in the body of the Canon Law nor any Gloss nor Commentator upon them is Law with us in England 'T is true that those Canons do not call it Simony nor punish it as Simony but if they did I Affirm they are nothing to the Case being not Law in our Church and so concerns us no more than the Laws of Coufutius or Japan 'T is almost unaccountable what Interest those Men would serve who have contended earnestly that all the Popes Laws are in force with us I know none but that of Doctors Commons who if they had so large a Field to expatiate in would have all Mens Estates and Reputations in their own Power But it is most certain that no part of the Canon Law is in force in England but what hath been received and used here not as the Popes Law but as made part of the Kings Ecclesiastical Laws by custom usage and consent Upon which conditions the Laws of all France might have been ours as well as those only of Oleron This is plain by our Statutes and it is a Premunire to defend and maintain those Canons or that shall
as the Clergy if they are legally deputed to it nay a Woman as Gerson speaks and the Abbesses and Prioresses do at this Day As for Visitations The Surrogate only sends to the Clergy to meet at such a place where presentments are taken and excesses enquired after which are meerly Temporal Acts though the Persons enquired of be some of them Spiritual Therefore when Redoanus and any other Canonists make Visitations in their large sense and acceptation or abuse rather of the word Spiritual it is because the Archdeacon is bound to Preach and give Spiritual Instructions to his Clergy and others as the pontificial forms for Visitations of which there are very many extant do enjoyn from which part a Layman is excluded As for Excommunication and Absolution it is well known that Laymen do not use them but leave them to the Clergy and though they are decreed by one they are pronounced and made valid by the other And how great complaints there have been in this Nation of the contrary usage is well known and that the Canons of 40 which shew the sense of the Church though they were not Confirmed utterly debar Laymen from any such Power Neither can I hear that at this present any Layman throughout England taketh upon him to Excommunicate without one in Orders to assist him And I am sure if he cannot bind he cannot loose For ejus est solvere cujus est ligare Those censures indeed are Spiritual when used in foro interno binding and loosing the Penitent upon Confession and Repentance and so are part of the Sacerdotal Power perswasive not compulsive But when exercised in foro contentioso they are granted by Bellarmine himself to be Temporal and coactive and it is amply proved by Bishop Carlton in his Book of Jurisdiction and by Bishop Andrews in his Tortura Torti Potestas Excommunicationis pertinet ad Jurisdictionem fori exterioris Marsilius Patavinus in his Defensor Pacis who Writ 1324 is positively for it Ab Officio principatus sive contentiosae Jurisdictionis regiminis seu coactivi judicii cujuslibet in hoc saeculo Christus seipsum Apostolos exclusit excludere voluit Which Jacobus de Almain approves reciting this passage of Marsilius The Archbishop of Spalato is express Potestatem Ecclesiae propriam totam esse merè Spiritualem And saith That St. Chrysostom St. Ambrose Bernard and Ferus agree in this Ab Ecclesiastico Rectore potestatem omnem imperatoriam coactivam executivam auferunt Nor can it be otherwise for if it were jure divino it must rest in themselves to whom it was imparted and could not be delegated and invested on others as Jurisdictions daily are I shall trouble the Reader with but Two or Three Authorities more and one is Franciscus de plateae among the Tractatus illustrium Nota tamen secundum Gul. quod cum paenae non sint extendendae ille qui Simoniacè suscipit aliquem ordinem sit suspensus quoad ea quae sunt ordinis non tamen est suspensus quoad ea quae sunt jurisdictionis unde si alias habeat Jurisdictionem tune habet potest suspendere Excommunicare ab Excommunicatione absolvere hujusmodi Covaracias saith the same and so doth Navarrus The highest sort of Simony is buying Orders and a Clerk is ipso facto suspended for it yet however though he be suspended from exercising or using his Orders he shall and may exercise Jurisdiction if he hath any And it is most certain and the communis opinio that no Simony soever shall hinder the convict from exercising his Jurisdiction as visiting censuring reforming correcting canonically or keeping Courts because the Jurisdiction is not by virtue of his Orders nor is it used by virtue of them being not a Divine but Humane Institution therefore executing the power of Jurisdiction shall never make him irregular as Navar and Covaracias and Infinite besides of the Canonists Observe Which demonstrates that their Opinion is that Jurisdiction is not Spiritual and from any supernatural Power And so transaction about it cannot be Simoniacal This is the plain consequence and deduction from that passage of Platea c. Which yet they seldom own in express terms For this is the Palladium of the Romish Church to make all they can Spiritual at least call it so Of this Grotius complained in his Oration at Amsterdam Restituta est imperii Romani dignitas sub alio titulo nempe Hierarchiae potestatis Spiritualis She contends to make every Cause Spiritual that so she may retain it and upon that pretence stamps a Nolimetangere upon all Matters that have any relation objective or Subjective to Religion This is her Diana and by this Fraud she gets her Livelyhood and hath enlarged her Phylacteries and made it Sacriledge for Temporal Princes to incroach upon her for all she toucheth is Holy and is not to be devoured by Dogs By this she hath erected a Monarchy and in the midst of Christian Kingdoms maintains a Power greater then she leaves to the Princes themselves and all by confounding the Ecclesiastical and Civil Power Temporal and Spiritual and engrossing both Powers to themselves of this Father Paul gives us a full and excellent account Constantine made a Decree that if either party litigant in Temporal Causes demanded the Episcopal Judgment the Cause should be immediately remitted him Here the Tribunal of the Bishops began to be a common pleading place having execution done by the Ministry of the Magistrate and to gain the Name of Episcopal Jurisdiction Episcopal Audience and such like The Emperor Valens did inlarge it who 365. gave the Bishops the care over all the Prizes of vendible things St. Augustine complained how troublesom it was to him Arcadius and Honorius restrained their Jurisdiction to Causes of Religion Justinian assigned them the Causes of Religion Ecclesiastical faults of the Clergy and divers voluntary Jurisdictions also over the Laity The Bishops became Counsellors to the Princes in the Western Empire and by the mixture of Spiritual and Temporal Charges caused their Jurisdictions to increase exceedingly He shews largely how they increas'd their Power over the Clergy and Laity pretending the Cause was Ecclesiastical or mixt and so leaving nothing to the Secular appropriated all to themselves making all devolve to themselves if the Magistrate will not or neglect to do justice This might be tolerable but not staying here they added that neither the Magistrate nor the Prince himself can meddle in any of these Causes which the Clergy had appropriated because Spiritual and of Spiritual things the Laicks are uncapable Though adopted by the Heavenly Father called Sons of God Brothers of Christ partakers of the Kingdom of Heaven made worthy of Divine Grace of Baptism and the Communion of the Flesh of Christ What other Spiritual things are there besides these 'T is false that causes appropriated to the Episcopal Judicature are Spiritual For all are either delicts or
THE Nature and Kinds OF SIMONY DISCUSSED Wherein it is Argued Whether Letting an Ecclesiastical Jurisdiction to a Lay-Surrogate under a Yearly Pension reserved out of the Profits be reducible to that Head. And a Sentence in a Cause depending about it near Six Years in the Court of Arches is Examined By J. CAWLEY D. D. Archdeacon of Lincoln LONDON Printed for R. Baldwin in the Old-Baily 1689. THE PREFACE THAT this Cause hath been carried on by the united Councels and Interests of many of Doctors Commons needs no proof the whole management of it declares it and the Doctor who is promoter of that Office owns it who hath been true to his Trust and left nothing unattempted that might advantage his Prosecution and depress his Adversary and this for Six Years together by all the Tricks and Quirks and Hardships that ever were put upon any Man since the First erection of Doctors Commons to this Day And all to make a meer Mistake a great Crime and by Art and Chicanry to advance it both in its Nature and Punishment ten fold higher than any Law of Christendom ever yet accounted it To effect this there were frequent Cabals and standing Counsel for the Promoter to have recourse to when his own Skill was deficient as it hath often been in this Cause Almost all the great Ministers both in Church and State have been courted and gained to countenance the Proceedings those especially of the Popish Interest or Perswasion who have advanced and cherished the Prosecution in several Instances As by procuring Patents from the King and Bishop of Lincoln to the Promoter and his Assigns by denying Prohibitions often prayed in the Courts at Westminster upon suggestion that the Cause was censured by virtue of Papal Canons never devised used nor received in this Nation by hindering a review and by contriving to exclude the Constitutions in Lyndwood which are the Ecclesiastical Laws of this Nation from being admitted to rule in this Case although there are Three positive and express about this very Matter because the Punishments they inflict were not sharp enough to answer the ends of the Promoter and his Associates Which was done by some to make a fair way for the Popish Religion by admitting First all their Canons and by others to introduce an Arbitrary Power over the Fortunes and Reputations of all the Clergy Some perhaps were led thereinto by meer mistake in the Canons cited and alledged by the Promoter and his Counsel which are such that they make all the Clergymen in the World in one Instance or other Simonical as Marlerate observes Secundum hanc rationem vix in toto Papatu reperietur sacerdos qui non sit Simoniacus And he saith Papistae crimen Simoniae ad otiosos suos proventus trahunt according to the Papal Canons account of Simony not one in all the Popes Territories can be guiltless and they make it serve to bring in a revenue to their Sloth At the Informations in this Cause any Word that could be found in the whole Body of the Canon Law was urged and improved against me and allowed for as good Law as if it had been at Rome it self all the Riff-raff and Trumpery of that Pedlar's-pack was exposed as if Popery had been then fully Established and Triumphant and every clause of the Romish Laws had been as much our Own as is Magna Charta And when I urged to be censured by Canons devised and made in England the motion was rejected as impertinent although it is well known such practice incurs a Premunire and it is an unaccountable thing That any should receive a Canon made at Lateran and Tours and reject our own Provincial Constitutions enacted in the Kingdom and by all the Clergy of it A thing I dare say never before attempted in this Realm at least in so high a degree as in this Case These Canons then that are said to have censured this Fact for Simony are all Foreign and a part of those which Luther caused to be publickly burnt at Wittemberg and whereof whole Books are to this Day rejected in France and Germany and all received no where but in the Popes own Territories Canons whereof one saith Fateor multa supposititia spurca fictitia hiulca falsa ex jure civili vel perperam intellecto vel fraudulenter applicato pro tyrannide sua stabiliendà distorta ludicra ridicula vesana nec non quod rei caput est impia blasphema nefaria tyrannica corruptelis repleta sacrilega crimen majestatis contra eum perduellionis spirantia Et quis trucis istius lernae singula capita vel fando narrare vel pro dignitate tractare possit The Bishop of Lincoln gives the Sence of all in his Treatise 1679. The Canon Law that Sink of Forgeries Impiety and Disloyalty For I scarce know any Book wherein are more forged Writings under good Names sometimes for bad Purposes or more impious Doctrines and Positions owned and authorized for Law or any Book which hath more Seditious and Rebellious Principles of Disloyalty An the Bishop of Down and Connor calls it And intollerable heap Such burdens on Mens Consciences which they can never reckon never tell over never know never understand And it represents the Happiness of Christendom that they are not obliged to such Laws whereof the Cardinal of Cusa saith Infinite Numbers were rejected when newly made and were all enacted by the worst Popes Persons Bloody and Ambitious Traytors to their Princes and Butchers of Christendom And yet even the severest of these Canons do not Decree this Fact to be Simony nor place it under that Title nor punish as Simony or with more than Monition for the first time or at most Suspension So Alexander the Third commanded the Archbishop of Canterbury no otherwise to censure the Archdeacons of Coventry for some sorts of Simony being not against Divine but Humane Law only but by admonishing them to desist If therefore any shall wonder how this Fact came to be called Simony in the Arches and then the Sentence to be confirmed by the Delegates I shall give a short Answer That it was never argued on my part in the Arches because the nullities in the Proceedings were so gross on the Promoters part that my Counsel advised me to rely on them in an Appeal which I brought which nullities I must have waved if I had joyned issue so the Promoter had a Sentence Secundum Petita as he desired and that was That it was Simony in hâc Parte And for the Delegates when it is known that half of them were of the Commons and so my Prosecutors and the very Persons who put the Promoter upon the project and that either the Promoter or his Agents had privily and very subtilly insinuated to the Delegates a most wicked and most false and scandalous Report that I bought my Archdeaconry telling many particulars and circumstances of it every Tittle
directly or indirectly put in ure or execute any thing for the Extolling Advancing setting forth maintenance or defence of any such pretended or usurped Jurisdiction Power Preâ—eminence or Authority or any part thereof The Second Offence is Preminure by the Statute of that Queen Now there cannot be an higher Offence against both the Statutes cited in the Margen than introducing Foreign Canons and judging the Causes of the King's Subjects by them utterly refusing to proceed by Canons made and used within the Realm as hath been done in this Cause Mr. Bagshaw in his Speech concerning the Premunire saith a Premunire was against Cardinal Wolsey and he was attainted in it though he had the King's Commission for what he did Quia ipse intendebat antiquissimas Angliae leges subvertere enervare universumque regnum Angliae legibus civilibus earundem legum Canonibus in perpetuum subjugare And for this he forfeited all his Goods and Chattels to the King White-Hall Hampton-Court Christ Church c. If it were not for these Statutes of Premunire there would be no quiet to the King's Subjects as Chancellor Audely told Gardner Bishop of Winton Those Laws of the Pope we have no more to do with than his Religion which yet by a Corrupt Interest have been partly maintained by those perhaps who hope his Power may sometime return where his Canons so much prevail It is indeed an unaccountable Boldness for any Judge to give sentence in a Cause upon Popish Canons never used or put in practise in England as hath been done in this Case but it must be remembred it was done when Popery began to rule us and he was most countenanced who could most cunningly introduce it one and that a very subtle Method being to bring in force again all the Pontificial Canons which the Reformation had Abdicated For this reason all the Popish Judges and those that were eminently Popishly affected would never consent to a Prohibition upon this suggestion though it was thrice attempted That it was no Simony by any Law or Canon that ever was used or in force in England though the suggestion be most certainly true and relevant That it is true I affirm because there never was any such Cause before heard in England nor any Sentence in it no nor is there any decision of this Cause to be found in any of the numerous Rotaes of all Christendom There is no instance before neither in England nor in the whole World of any hearing wherein it hath been judicially pronounced Simony Therefore the suggestion must be relevant as may be seen by the Statutes before cited for those Canons on which the Sentence is grounded are no Laws in England Suppose a Man was Libelled in the Court Christian for Heresy they will proceed because it is an Ecclesiastical Crime and give sentence It is true that by the 1 Eliz. if it be not such as hath been declared Heresy by the Four First General Councels they ought not but the Court will not hear it Whether must the Client go but to the Temporal Judges who are to explain and vindicate that Statute and enquire whether it be Heresy within that Statute or no and whether the Canons about Heresy by which the Court proceeds do not abate by virtue of that Statute In this Case the Reverend Judges may and let me speak with humble submission ought to enquire whether the Court do not intrench upon the 25 H. 8. 21 c. That Enacts no Canons shall be used but what have been received and if the Court Christian put in ure such Canons they are to be restrain'd else these several Temporal Laws were made in vain that have abolished such Foreign Canons It seems to me the strongest plea in the World to alledge That this Cause is pronounced to be Simony by Canons that were never in force in England or if they were they are abrogate and obsolete and of this I am sure none but the Temporal Courts are the proper Judges For if the Court Christian be allowed to make use of what Pontificial Laws they please there is no Bishop or Clergyman whom they cannot deprive for this very Crime in Instances never yet heard of by Englishmen Godolphin takes notice how much Simony in England differs from that of Rome and saith The Canon Law in this point of Simony is of far wider extent then the practice with us He enumerates Nine Cases and concludes thus with divers other Questions in the Canon Law relating to this subject the solutions whereof are not of any moment to us who are out of the Pope's Diocess I shall add some other Cases out of the Body of the Canon Law and Gloss or approved Authors few whereof are Simony in England though they are so at Rome or Bononia Viz. Buying Reliques Holy Roods Agnus Dei's Holy Bread or Water Chrism Consecrated Beads and Candles all Garments of the Mass-Priests Corporals and other Vests of the Altar Consecrated Clouts Bells Chalices or Crucifixes if you give more than the matter is worth To become a Monk with hopes to be Abbot To hope for a Bishoprick or Benefice or to promote any Affairs of the Patron in expectation of the next Advowson or to get a promise of it To observe Canonical Hours to get the Canonical Portion To agree what Salary you shall have for serving a Cure was Anciently Simony if not still To ask a Benefice with Cure of Souls for an unworthy Person or for your self though never so fit To confer a Benefice upon condition the Clerk do you no mischief A Bishop so much as ask for a Bishoprick For a Divinity Reader or Catechist to take any thing of their Auditors if the Lectures are endowed To teach School for reward if the Master has a Prebend or Salary from the Church as they have or ought in all Cities by the Canon Law. To take Money for Preaching Lectures or Sermons for a Neighbour Minister or to preach to gain Applause To give Money to another to pray for you For Favour or Affection to reconcile a Penitent or conceal his Crimes or for hatred to repel him To present to a Benefice as a recompence to a Clerks Merits in many cases is Simony To present Kindred or Familiars with any Respect thereto or to gain Honor or Repute To purchase the next Advowson or the Perpetuity if you give more then the Mannor is worth without it To found a Prebend on condition that you may retain it for your Life To buy a Burial Place To take Money for Burials Christnings Marriages or any of the Popish Sacraments that confer Grace To agree to Celebrate for you to morrow if you will for me to day To say Mass hear Confessions give the Sacraments with intention to get by it A Bishop or Prebend to pay any thing for Installation or Bishops to do Homage to the King for their Bishopricks To give Money to the Bishop or