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
his Secretary for Institution which made Bishop Bedell write all his Instruments himself and follow the Incumbents out of his Doors least they should give any thing to the Servants c. To give Money little or much to the Patrons Servants to speak to their Master to present To promise a Bishop not to require a living of him when he Ordains sine titulo To give to a Patron Money to present though he never doth or a Clerk to give Bonds to resign To give Money for Admission to a Religious House for a Fellowship in a Colledge or a place in a Lazer or any Hospital for a Commandry of Malta or Knight of Calatrava or Alcantara or any other Religious Order or to be keeper of the Sepulchre To give any Entertainment upon Admission or Installation To buy any Place in Chancery or Doctors Commons when they were all Clerks as Originally they were or any Ecclesiastical Jurisdiction or Office when exercised by Clerks and Unmarried Men as Anciently they all were but now it 's not Simony for as the Nature of the Function is altered so is the Nature of the Purchase To advocate or plead Ecclesiastical Causes for Money was Simony heretofore say Altissiodorensis and Aquinas but not now To make a Notary Publick in Ecclesiastical Matters for Money I shall add upon the Authority of the Gloss what I spake of before To buy the Porters place or Bellringers or Butlers or Candle-lighters or the Grooms or any other Office Ecclesiastical Besides these we find many Nice enquiries in the Canonists about Simony As whether one can be a Simonist by making a Contract with God or the Pope Or by buying a Slave his Liberty that he may enter into Orders Whether one can be Simonical without an intention to commit it Whether it be Simony to give Money if the Incumbent should have had the Benefice though he had given nothing Whether to give one Spiritual Thing for another Whether Gehazi was a Simonist who made no compact or took any thing of the Profit till after his Master was restored Whether to give Money to an Infidel on condition he be Baptised Whether Clerks may take Money for Spiritual Offices in Places where they are not bound to officiate For what is Simony and what is not is one of the most perplexed Questions in the Canon Law. So Pius the Fourth thought it when he revoked many Decrees of his immediate Predecessor about it though formed by 150 Cardinals Bishops and Canonists and approved by most Universities in Christendom because he adjudged them too rigorous And Felinus cites the Archdeacon of Florence who saith as much of Eugenius and Martin the Fourth and of one of the Urbans For Ecclesiastical Simony being but malum quia prohibitum and only a Pontificial notion The Popes might correct their Breves as they saw occasion and make that but Disobedience in one Pontificat which was Simony in another Which had the Promoters of this Cause well weighed perhaps they would not have contended so fiercely to create a new Crime and Sect of Simonists unknown to all the Canonists of Christendom from Innocent the IV. to Fagnanus and which is not to be found in any of the Rotaes Counsils and Decisions extant if the case be stated true according to the Fact which is That the Jurisdiction was not sold but let and not to a Clerk but a Layman FINIS ERRATA PAge 8. line 17. for Gratian read Seneca ibid. l. 23. r. intelligunt P. 9. l. 6. Laical ibid. l. 26. made use of P. 10. l. 4. Victoria P. 11. l. 5. intend P. 12. l. 24. add and Impropriators c. P. 13. l. 36. Covaruvias P. 14. l. 8 9. Covaruvias P. 19. l. 11. Canonists In Actor 8. 21. Duck de usu aut jur Jus Belgarum c. Edictum Phil. 2. Gerson Epistolae Ecclesiasticae Foâ—sterus de jure can quatenus recipiend in Praefat Popery its principles and pos pag. 35. Duct dub l. 3. c. 4. reg 16. Alex. 3. Gr. 9. Bon. 8. Clem. 5. John 22. Extra de paenis c. licet * Ubi principale quaefitum non est Pecunia non est Simonia sayâ— Navar c. De Jur. l 9. Art. 2. in fine Vide Redoanum per totum de Simonia De Jur. lib. 9. Tit. Simonia pag. 759. Durand in Dist 4. 25. qu. n. 5. De Jure Just Tit. de Sim. Extra ne prael vices cap. Quoniam Navar. Tract 2. Vol. cap. 23. de 7 Pecc Capital Lib. 5. Tit. 4. Vices i.e. Jurisdictiones Gloss * Vendere Officia non est contra jus divinum Soto de Jur. cap. De Sim. So Rodoan de Sim. per totum De Jur. Tit. de Sim. l. 9. De Sim. pars 2. c. 9 n. 4. Id. pars 1. c. 28. n. 8. In cap. Messâ—n de elect not 3. Lup. 9. 6. n. 2. Lyud Red. de Sim. pars 2. c. 36. n. 5. Not. 1. In Ne prael vices Extra Ne prael vices c. Quoniam v. precio Lib. 5. Tit. de haeret Consil 29. n. v. 8. Fel. in cap. consulere de Sim. Tit. 3. n. 7. Glos. q. 3. ad huc v. qui claudi tostia 1 Qu. 3. Salvator v. judicem Gloss v. Subjecto vero Redoan pars 3 c. 23. n. 16. V. Simonia Zab. in consuleâ—e de Sim. 1 Qu. 3. Si quis 4 Sent. Dist 25. In cap. extirpandae qui vero de prael Red. c. 29. n. 19. pars 1. Pars. 2. 1 q. 3. Salvator In 1 q. hujus quaestionis In Ne prael vices Vict. Relat. c. de Sim. n. 16. Theol. Moralis l. 6. tr 10. de Sim. c. 6. n. 63. Tract de Sim. qu. 3. 1 Qu. 3. 1 Qu. 3. Salvator Inst Moral pars 3. l. 12. c. 14. in fine Andrews Bilson Burhill Tompson Carlton Sanderson c. Tab. 2. In margaritâ Bald. Loco Repert Innoc. 4. Super Decretal Excommunicare suspendere est jurisdictionis non autem est de curâ animarum Ita notat Host in c. dudum de elect Lib. 5. c. 7. de Rom. pontif Pag. 41. 48. Pars 2. c. 4. De supr pot Laicâ fol. 39. Lib. 2. c. 1. Cap. 2. p. 12. De inter dicto cap. 2. n. 5. In suo p. 461. Hist of Councel of Trent l. 4. Pag. 158. Lib. 2 de Sacramentis In ne prael vices Qu. 3. Sed ad huc 22 Qu. 100. Art. 4. 16. Q. 7. Decerminus l. 8. c. 13. p. 5. Lynd. de vita hon cler c. exterior v. pendulis Lib. 3. de Praeb Consil 13. n. 3 4. Extra in 6. de temp ordin c. 1. v. Italiae M. 6. de paenis v. paenis Lynd. de locat conduct c. ut verè v. certis personis Matt. Paris Spelman 2 vol. Concil in initio Can. 40. Reg. juris in 6. De vita hon cler c. hoc sacro v. beneficiis Extra de verb. sign c. quaerenti Videsis Saynum de censuris Tab. 7. Burton Melford Hughs Degg Godolphin Lynd. Nè prael vices lib. 5. Cap. Ecclesias Cap. Indign 1 2 Phil. Mariae 8. Revived by Queen Eliz. Episcopacy not prejudicial c. Pag. 32. 25 H. 8 21. 1 Eliz. 1. In Nè prael vices Dr. Heylin c. 25 H. 8. 21. 1 Eliz. 1. Page 32. Mich. 21. Hen. 8. Banc. Roy. Id. Page 40. Though they granted a Prohibition upon another suggestion Repert Canon cap. of Simony * The present Bishop of Sarum in his life 1. 9. 3. c. 1.