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
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
for him to get began to practise the like domineering humour upon the other Potentates of Christendome sending his letters of claime to the Kings of France England Scotland Denmarke Poland Hungarie But being opposed by Philip le Beau King of France hee did flie backe to the Emperour for succour who then was Albertus the first Emperour of the house of Austria for though his father was Emperour yet hee was not of the house of Austria neither of the old Marquesses nor late Dukes but Earle of Hansburg who had conquered the Dukedome of Austria for his sonne This Boniface the Spaniard first began the faction betwixt the Kingdome of France and the house of Austria by giving the Kingdome of France to Albertus These two better agreed then any because the Pope had taken off the Emperour from seeking his owne right in Italie by imploying him as his champion to enlarge his dominion in other Kingdomes and partly because the Emperour had good hope to continue the Empire in his familie as it hath neere foure hundred yeares From which time the Emperours and Popes disagreements were not so frequent but onely when some French favourers were Popes and they sate at Avinion as Clement the fifth with Henry the seaventh and during the times of the Councels of Constance and Basill But by reason of the schismes in the Roman See they did one another neither much good nor harme vntill the time of Alexander the sixth a Spaniard who was exactly ambitious a great lover of his countrie and one that did much for it Anonymus Hisp in vita Alex. For hee joyned with Ferdinand the first Catholick King helping him to subdue Spaine and therefore first brought in the Inquisition Contra los Iudios y mores que le aviantornado Christianos which Caranza Arch-bishop of Toledo saith Ferdinand conceived himselfe bound in conscience to vse by vertue of an oath taken with an imprecation by one of his predecessours in the fourth Councell of Toledo Baronius Annal An. 637. which Baronius so much commends This Pope also bestowed vpon him the then discovered Indies with many other favours and for his sake and in opposition to the French hee was as fast a friend to the House of Austria as his deepe dissimulation would suffer him Philip. Cominoeus lib. 8. and the rather because they had lately matched with the House of Burgundie which much weakned the French force and strengthned their factions Thuanus hist. lib. 4. But then most when Philip the heire of the House of Austria and Burgundie incorporated himselfe with Spaine So that I will conclude these things considered that this forme is onely safe and convenient for those kingdomes that propose conquests and can rule it as the protectors of it § 5. So then seeing this Clergie is not for vs I will consider of the other which for distinct proceeding we may call Democraticall When the three Prime Potentates of Christendome were Charles the fifth Henry the eighth Francis the first such as deserved and desired to haue all the soveraigne power that could of right belong vnto them and yet were contrariwise vsurped vpon and deprived of all their eminent supremacie in those things that most concerned them perceiving some beginning to question the Pope a course of relieving themselues they began to vrge a Councell for reformation not onely in doctrine and manners but also in point of Ecclesiasticall government But it was so long vrged by them to no purpose that Henry the eigth advisedly wrote to the other That seeing the Pope had so long put it off Histo Trid. and now intended to hold it within his owne territories it were the best course for every one to reforme his owne Kingdome and he did so with the advise consent and desire of the Church and Statâ— representatiue No sooner was a reformation in any degree setled but presently it was excepted against by some that favoured the Church of Geneva as not fully reformed because not agreeing with their new neat platforme that was vrged vpoÌ„ vs as the only Apostolical government of the Church But I marvell how such an exact government should be so suddenly framed or else which is more strange that they could so conceale their happy invention as that Francis the first a King of France that searched into his government as much as any should not know of it For I am very much deceived if hee had not beene much mistaken knowing of this project to desire the Councell might be held at Geneva being it was Diametrically opposite to the Romane But our State had no reason to receiue it Hist Trid. For though it was necessary not onely in reason of State but also out of conscience that after we perceived the indisposition of the Romane Clergie to reforme themselues which they seem to hold impossible For though every Cardinall takes an oath in the vacancie yet it cannot binde him when he is Pope wee should then performe our duty especially seeing it stood with the publick good Yet neither of these considerations did engage vs to accept of such a forme of Clergie as seemed to runne a cleane contrary course seeing we propounded not an innovation but a reformatioa that being as dangerous as this was necessary it could not here be entertained without an vniversall innovation Now all stirring changes are dangerous especially when the body of the common-wealth is full of diseased discontented humours Because all alteration sets the humours a working and one humour being a-foote stirs vp all the rest either alluring by sympathie or provoking by antipathy and when they are once a-foote it is to be feared that they will not onely disburthen the body of malignant oppressing cruâ—â—ties but weaken it in the most principall parts causing it to receiue a disposition to the like distemper vpon every small distaste But it is most dangerous to innovate in that part of a common-wealth that is most essentially actiue and hath beene lately recovered especially if the matter proposed doe minister any cause of relapse Both which seem too true in this new discipline which gaue an occasion to the Clergie to revolt in the denying the supremacie which they lately acknowledged And being a forraine French devise might seeme to come within the compasse of a praemunire for intrusion as well as that of the Church of Rome for vsurpation But this was only propounded not brought in and that by men who were by some beleeved to be faithfull to our State And it may be they had no dangerous aime in it yet it would haue beene very dangerous for our kingdome since it did necessarily induce an alteration in the profession and practise of the lawes which by reason of their long vse are as it were naturalized into the manners and disposition of our nation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Rhetor. l. 2. cap 11. It must necessarily haue conferred ruines vpon our schooles of learning and hospitals
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
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