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
is the prohibition that is lawfull as for a prohibition of fact which is by a sophisticall suggestion sucked and squeezed out of the copie of the libell without judgment of the Kings Courts vpon it in my opinion is not right and is many times the cause of wrong either in vnjustice or delayes yea and in abusing of the Statute with the Kings Courts For the prohibition of law the most I conceiue it inferres is to make all the proceedings voide Coram non Iudice But if I might know what degree and quality of offence it is for a Court temporall to hold plea of a meere Ecclesiasticall cause I should more easily apprehend the scandalous nature of the ground of a prohibition which it may be is the same with a writ of errour in the temporall Court since that a consultation doth not ensue vpon that but after a prohibition grounded vpon a suggestion So then all the proceedings of these Courts haue their power from this last act of supremacie as well in primatiue processes of inquisition as in punitiue processes of execution As this authentick authoritie is most seene in the proceedings ex officio which are not onely nor alwayes by oath as many are mistaken These are by immediate commission where an Ecclesiasticall cause is criminall and prosecuted as criminall And so also the vtmost punitiue processe Ecclesiasticall which is a writ de Excommunicato capiendo is evidently derived from the Kings power and issueth immediately from his favour to the Church that it may be more easily obeyed Iohan. de Paris de Potestate Reg. Concl. 1. and is divers and variable in sundry governments and executed by temporall power being nothing of the nature of the spirituall excommunication but an accession concessâ permissione ex devotione Principum as Iohannes de Parisiis saith against Boniface the eight As for the judgements of Bishops consistories as they are derived from the power and law of Christ the great Bishop so they are like the judges of them who are rather arbiters amicabiles compositores as Panormitane then Iudges ruling by the austerity of authority so that poore defendants may flie to them as to their altars who are Ministers of the altar and in this sense that which Architas speakes is most true Arist Rhet. lib. 3. c. 11. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem esse arbitrum Aram. And though they haue no forcing power but from the King and no power of any force against the King yet the greatest and best Kings haue yeelded to them in their advice not as Prelates but as they are Fathers in God as Alexander the great said to his father King Philip 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Chrysost 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 farre vnlike the Bishops of Rome who will rule the highest Princes and yet professe themselues servants of servants which makes mee call to minde the observation of the wisest King Salomon Proverb 30. that one of the chiefest instruments whereby the earth is shaken is a servant that rules over Princes And as they vsurpe rule so they vsurpe the sword of temporall Princes and carry it in the spirituall scabbard and drawing it doe more hurt in their passion then they can help by their priviledge when as they found it soberly and orderly put up by St Peter when Christ was at his elbow to heale the greatest wound that hee could make Thus is it somewhat plaine how Ecclesiasticall power is derived from the King as hee is supreame head in lawfull and full authority over all causes and persons which double power in my conceit the custome of the ancient Persians at the death of their Monarch doth fully and fitly expresse for the lawes are silent Brisso◠Regn◠lib. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their holy eternall fire which every one worshiped in his private house as his houshold god was put out when the Emperour died § 4 The next thing which I promised to declare was how the honour of the state Ecclesiasticall is annexed to the power by the Kings lawes and royall prorogatiue The honour of the Clergy is contained in revenewes and priviledges 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A◠lib. 1. which are vnited to their powers of order and jurisdiction which powers although we should grant that simply considered in themselues they are not distinguished jure divino yet I am sure none will deny that they are distinct quoad extensionem permissione approbatione divinâ as Iohannes de Parisiis doth distinguish the power given the Apostles into six parts in respect of so many severall acts of execution the fift of which is potestas dispositionis ministrorum secundum quosdam quoad determinationem jurisdictionis Ecclesiasticae ut vitetur confusio Ioh. de cap. 1 And as they are thus distinct according to the execution and stand so confirmed by the positiue lawes of the land so they haue distinct portions and priviledges according to the same lawes yet after a different manner especially in respect of the portion For the power of order which hath maintenance of diverse kindes as tithes oblations Gleabland and mortuaries holds them all according to the lawes of this land as due to the Clergie for executing the power of order but by different acts of these lawes as Mortuaries are permitted and Gleablands granted Tithes and Oblations confirmed and all constrained to be paid Now tithes that are onely confirmed by the Kings positiue lawes are supposed to bee due by some other law of higher nature then the Kings which is not any forraine law Bellar. de Cler. lib. 1. cap. 10. as Ius Ecclesiasticum as Bellarmine calls the Cannon law it must bee then by law divine or immediately arising from supernaturall and morall considerations which law we grant to be positiue yet not meerely humaine Hooker Eccles Polit. l. 1. §. 15. nor changeable in respect to us and they must necessarily runne into many grosse errours that take onely such lawes for positiue as are invented by men and thence conclude them mutable And therefore I presume that the learned Selden doth so vnderstand the positiue law by which hee holds tithes to be due not in opposition to divine and morall but as specially diverse from it as it partly appeares in the whole drift of his history where I doe not beleeue that any can finde that hee ever delivers his judgement denying them to bee jure divino so that in my apprehension and I hope not against his intention he may doe the Church much good in his relating what wrongs the Clergy in all ages haue sustained For his history is onely de facto what hath beene done hee giues not his judgement de iure what ought to haue beene done which if he had he would assuredly haue pronounced for them and this I am forced to beleeue when I consider his exact generall knowledge and the reverent respect he beares to
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