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
as to haue a religion so to frame the exercise of it according to their owne dispositions but some with more doting indulgence haue at last changed it into that which they were most naturally disposed to and did not alter and order their inclinations by it As the foure grand Monarchies the Chaldean with whom the Persian may well be joyned these turned the acts of religion into philosophicall considerations enquiries and explications of nature The Egyptians a principall branch of these Monarchies and from whom some thinke the Chaldeans were derived and that Belus Neptuni Libiaeque filius in Babyloniam colonos ex Aegypto traduxisset Diodorus Siculus Biblioth lib. 1. ex iis Sacerdotes quos Chaldeos Babylonii vocant qui more Aegyptiorum astra observant c. These Egyptians naturally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 superstitious in religion curious in mysteries transformed religion into all kinde of superstitions and by trying conclusions and chymicall experiments vpon it conceited the substance of it into vnexpected phansies furthered by mimicall expressions leading into and leaving in mysticall mazes The Grecians by nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intelligent able to find out and loving to contend drew religion into disputes and would beleeue no more than they could finde out by search of reason and apprehend by force of fansie and that they obstinately maintained by a wanton working wit which they might with more ease doe seeing their language was so happy for expression The Romans by nature inclined to dominion fitted the frame of their religion to a Monarchicall forme vnder the Pontifices Cujaci◠Origin lis §. 1 yet they seemed to seeke a Monopolie of all the Gods in the world for they receiued and worshipped the Gods of all the nations they conquered These nations framing religion to these ends August Civit 〈◊〉 20. cap had a forme of government vnder religious persons sutable to further contriue and compasse by all meanes their particular purposes and therefore they gaue them power of a most large extent yea they were ruled by them for the Chaldeans were originally Priests and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a priest Synesiu 126. and a Prince were all one with them So the Magi amongst the Persians the Priests of Apollo at Delphos amongst the Grecians did what they would Pomp◠Orig. I. And the Romans were led by their Pontifices and Augures but it was whither they would namely to a Monarchy Wee having not the ends of these nations in our religion must not vse the same forme of Clergie For I conceiue the aime of the best and wisest with vs is to preserue the Church and Common-wealth together Now that cannot be where the state of the Clergie governs but where it is governed Our ayme being such let vs consider what forme will be best governed vnder this Common-wealth There are but three distinct formes of Ecclesiasticall government in Christendome as the Monarchicall Aristocraticall Democraticall of these the Aristocraticall is most conformable to the rule of this Realme In proving of which assertion I will not onely insist vpon the proofe of past and present experience that it is so but discourse in reason why it should be so And first in opposition to the other formes of Ecclesiasticall government what they are likely to produce woefull experience hath long since felt in the one and what we may expect vpon probable conjecture from the other is not to be desired by any that vnderstand and loue the happinesse of this Civill State For all their principles fundamentall in their grounds of augmentation in their growth of conservation in their heigth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius lib. 6. and of reparation in their decayes are most dangerous for this Monarchy and the causes of their corruption would be so incorporated into the body and bowels of the Civill State that if it fall not before them and into their hands they would goe neere to pull it downe with them when they fall Not so speake of their power which they must haue and the exercise of it either in an ordinary and lawfull course or by indulgence or vsurpation and the manner of their proceedings in the execution of it what instruments they vse in counsell and action how much they trench vpon the power vndermine the government countermine the proceedings countermand the edict and confront a Monarchy I leaue it to wise and actiue men to consider § 3. First to speake of the Monarchicall which is now the Papall government How this Monarchicall forme hath heretofore agreed with this State all know and it is not likely that it should now so well accord with it because the reasons of that little agreement then the present particular interest in which this State vsed that Monarchy are ceased for then wee aymed to enlarge our dominion by the right of succession in France by the right of conquest in Scotland and Ireland But the causes of disagreement still remaine and are in their part aggravated to an vtter opposition so that as before it was dangerous so now it is a desperate case to re-entertaine that forme of Clergie which can and will rule vs and must necessarily alter and so worke the ruine of the present state Vnder this forme this Kingdome was no Monarchie but a Province vnder a forreiner an vsurper and a tyrant This was our best condition when that Clergie ruled vs though as favourable as they could or did any Monarchy in Europe The lawes and priviledges of the land were continually broken and infringed by them especially those lawes that did most immediatly vphold the Kings prerogatiue Against them they continually promulgated particular edicts for the decrees were too generall to be applyed to occasions and therefore they added the decretals so called because they gaue wings to the decrees for quicker dispatch And wee shall finde Duare◠benefici◠Prooem that most of the Decretall epistles which concerne Iurisdiction were written to English Prelates And as I conceiue some reason might be because the lawes of this land are more contrary to the Canon Law than the lawes of any other States in Christendome being they are more ruled by the Civill Law from which the Canon is derived and so more causes might arise here amongst vs either out of the contrariety of the Lawes or out of the narrower extent of the Common Law and also partly out of the ignorance of the proceedings of this State which was then likely to be most because intercourse and intelligence with Rome for that time was abridged for Henry 2. being then at variance with Thomas Becket who was sheltered by the Pope Alexander the third permitted not any Legate to reside in the kingdome but as soone as Vivian was arrived he was questioned and that by the Bishops of Winchester and Ely how hee durst land without the Kings speciall licence And partly they writ the oftner to English Bishops because they suspected them and justly to be
more partiall for their Prince than the Prelates of any other kingdome as appeares by their readinesse to examine this Legate and also by an epistle Decretall of Alexander the third to the Bishop of London Lib 4. tâ—â—t 17. câ—p 7. qui filij legitimi Sarisburiensis de nugis curial lib. 7. cap. 24 who then was Gilbert Foliot a man much commended by Mathew Paris and Iohn Sarisburiensis in that epistle hee curries favour with him in a cause which hee knew was of Ecclesiasticall cognizance and was so judged here in the Kings court as appeares out of Glanvill then Lord chiefe Iustice I think in the very particular case Glanvill lib. 7. cap. 15. Ad Regem Angliae pertinet de possessionibus iudicare Iohannes de Parisijs contra Bonifacium octavum cap. 12. But he feared seeing the Bishop could doe so much with the King and would doe so much for his King least hee should finde some way to entitle it to the Crowne and hee had good reason to feare since the Bishop had so often in the Kings behalfe opposed Thomas Becket and him These may bee some reasons why the Popes sent so many epistles into England and I am the more confirmed in them because I finde they were for the greatest part written by the most Pragmaticall Popes who busied and bestirred themselves most in setting up orders and new fresh Fryes and fraternities of Fryers and in pulling downe the powers both of our Kings and Bishops to wit from those seaven Popes who were the thirds and I thinke the worst of their names I am sure of their predecessors As for the most part they were written from Alex. 3. Lucius tertius Vrbanus tertius Clemens tertius Coelestinus tertius Innocens tertius and Honorius tertius these men did and undid very much because they were active and lived long If then this forme of Clergie was thus prejudiciall to our state before it was opposed and incensed by the statute of Proviso and Premunire and cast off by the Kings just re-assuming their power which shewes that all their right was nothing but our soveraignes wrong surely now wee are not to expect so much favour from them and therefore as the State then thought it necessarie and right to casheere it and brought their purpose fully to passe so it is now more necessary and just to keepe it out since it is infinitely increased in tyranny since that unhappy unadvised ill advised conventicle at Trent § 4. Those nations shall have the best use of that forme who propound a civill state as large as their Ecclesiasticall and to whom he hath first sought too for assistance and withall are able to overrule it For after Iustinianus the last of the true Roman Emperours and Gregory the last of the good Popes that See claue to Phocas who named the Pope Vniversall Bishop that hee might proclaime him Catholique Emperour But when in the next Centurie the Easterne Emperours were infested with Saracens warre began to pull downe images as some cause of the warres which the Pope endeavoured to set up againe then by the second Councell of Nice whether because they did him wrong in disobedience or rather because they could doe him no good the Greeke Pope Zachary fell off to the French before the next Centurie And then Pipin used him to confirme not to conferre his new atchived Kingdome for in those dayes they gave no such power neither did Pope Zachary claime it for hee deposed not Childericke but consented to the deposing which was by the Peeres of France neither did he set up Pipin in his roome but they that deposed the other onely sent to Rome to have Zacharies advise in it Bulla 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because it might passe more plausibly in the world by the consent of so grave an Oracle as it hath alway beene good wisedome to winde in the conscience of one who is esteemed an upright Iudge for the countenance of an unusuall cause humorously undertaken by the first Author especially there being then a faction amongst the Bishops of France Baroâ— nal 〈◊〉 so that this inquirie of his judgement in point of fact did non submit to any claime of right And Gotefridus Viterbrensis affirmes and Baronius confesses Francos non Zachariae paruisse decreto Baroâ— nal 〈◊〉 sed acquievisse consilio and there is great difference betwixt an absolute injunction and a politique advise which is onely an answere out of discretion and left to discretion implies no obligation of necessitie But this is without question Pipin being ambitious of the Kingdome and desirous to cover and colour it with religious ends used the Pope to countenance and compasse his designe who would not withstand him being ingaged to him for protection and by bounty or which is likelier hee durst not being too much in his power But howsoever it was he clave fast unto the French for that Century especially to Charles the great the repairer of the Westerne Empire from whom the Caroline succession continued till Otho the third But then the French Kings being distracted by warres at home Augustinus de Aâ—cona de potest Papae quaest 37. Art 5. could no more assist them Gregory the fift an Almaine transferred it to the Almaines chose those seaven Electors but they agreed not well together after the Almaine Pope was dead and Italians succeeded they presently began to quarrell with the Emperour and to send challenges of right into Italy knowing that the Emperour was not able to doe much for them in giving them as the French had done and perceiving hee was more unable to hold from them that which they would have Segebertus â—hron passim so that the Emperours were continually imbroiled by them being not able to rule them decreasing as fast as they rose Then the opposition betwixt many particular Popes and Emperours as betwixt Gregory the seaventh and Henry the fourth and Alexander the third with Fredericke Barbarossa was very strong But after it grew to such a height that they were setled into factions of separations as the Ecclesiastiques and Imperialists especially in Italy Nabrigensis hist Anglicana lib. 4. cap. 13. which the Italians quickly perceiving because earnestly desiring the Emperours power over them to be looser began to make use of the Papall present opposition to procure their full liberty Abbas Vnspergensis chron passim and therefore these factions were most strong there Yet that grand faction distinguished by many formalities was principally maintained under the names of the Guelfs and Gibellins which swallowed up all the private and pettie familie factions of Italie As the Vrsini in Rome were Guelfes Mat hist Ann the Collonensi Gibellins the Vberti in Florence were Gibellins the Bondelmonti Guelfes and so it was in Naples Venice Millaine which strife continued hot till Boniface the eight who perceiving how much his predecessors had gained upon the Emperour and saw but little more
Bishop the Arch-deacon is his Vicar iure as Zerola vicarius natus Zerola Episc Archiâ— as Hostiensis which they vnderstand in respect of jurisdiction in spiritualibus for not they but the Archipresbyter is Vicar in divinis which is in spiritualibus in relation to the power of order So that you see they take not any such ordinary power vpon them but leaue it to the Bishops and their most naturall and lawfull Vicars in that power Formâ— tattorâ—â—ensis and yet they may be their Vicars in Pontificalibus as the Canonists expresse it which is in those causes that belong to their Sees as they haue peculiar and prerogatiue Courts and such may be Lay-men according to the most moderate moderne Decretists Syndicos saith Duarenus siue defensores Duarâ— officijs l. 1. c. apocrisiarios siue responsales laicos posse esse though by the old Canon Law Vicarius Episcopi debet esse Clericus And it is counted one of the insolent rare actions of the Popes causas Ecclesiasticas Laicis delegare This jurisdiction they may haue without any trenching vpon the office of a Bishop in his personall jurisdiction which I conceiue â—â—nnot be delegated to a lay person Durand de orig Iuris Eccl. Con. 2. being that jurisdiction whereby he doth exercise and execute his correctiue coercitiue coactiue power which is the instrument of his pastorall paternall care over his Clergie and proceeds from the power of consecrated order and is inseparably vnited to it which power I finde fully yet briefly expressed by St Cyprian speaking of a contumacious Deacon to his Bishop Cypr. Epist. Rogat Episc he adviseth the Bishop vigore Episcopalis cathedrae aut deponas eum aut abstineas either to degrade or suspend him neither of these will a Lay delegate doe yet I grant he may suspend if not ab officio yet à beneficio And for their visitations which are an act of ordinary jurisdiction they performe them not ex officio but by a speciall commission And for the forme and force of their inquisition in them it is not generall concerning the doctrine and manners of the Clergie but directed and restrained according to the Bishops Articles Formula visit Dioecesis Coloniensis and without requiring an oath of the party presented visitatores interrogabunt absque exactione iuramenti yet I doe not disaproue that an oath should be required vpon a fame because it respects as much the purgation as the conviction of the jurant And for the sentence of excommunication which some make the processe of spirituall Courts in point of contumacy I am not able I confesse fully to satisfie in that point but I dare subscribe to what iudicious Bishop Bilson saith of it to cleare it who I am sure could and would say as much in the behalfe of Ecclesiasticall officers as any Bishop of his time who speaking of the power of Excommunication De perpetua guber Eccl. cap. 14. saith Nequaquam sibi clavium potestatem assumunt sed poenam ob contumaciam infligunt quâ omnes illae animadversiones continentur quae legibus in eos sancitae sunt qui claves Ecclesiae temerè contemnunt quocunque nomine appelletur sive suspensio sive condemnatio aut excommunicatio nil refert dummodo ne potestatem hanc divino sed humano iure sibi vendicent nil causae tunc est quin Iudices civiles delinquentem in poenam Canonis incidisse declarent But the maine ground of these and such like exceptions is because Civilians are not in orders with vs as most Canonists be beyond the Seas though they haue no title and are but Presbyteri Vtopiani as Duarenus cals such if then our Ecclesiasticall officers were all in orders as some of them are then they could not with any reason except against them for Lay-men no more then they can against the Pontificiall Canonists who haue farre more Ecclesiasticall power especially the moderne Legists and are as able to judge of heresie as the Duke of Bavaria vnder Zachary who condemned Virgilius Bishop of Saltzburge of heresie because he affirmed Aventiâ— nal lib. that there were Antipodes when as Isidorus Hispalensis was not condemned for holding hell to be at the Antipodes Tho. Aq suppl qu Art 9. neere three hundred yeares before Yet these are the only men that are now judges of heresie which makes modest Melchior Canus complaine Melchioâ— lib. 8. câ— Non video quonam consilio in cognitione haereseos partes postremae ne dicam nullae theologis permittantur jurisconsultis verò vel primae vel etiam omnes When as with vs 1. Eliz. not our Chancellours nor Commissaries nor our Bishops alone may determine of heresie and yet I beleeue any of them haue as infallible assurance of truth as immediate vocation commission assistance by inspiration as all they but onely they are in orders ours are not as the twelue auditors of the over-ruling Court of the Rota are the Popes Chaplaines by their office as Lelius Zecchius de auditoribus Rotae and so are those irrefragable referendaries and the Popes finde great good in having them in orders for you shall not find but the Canonists haue alwayes stood for the Popes prerogatiue but onely in Concilio Pisano Guicciardine saith they that were for the Councell which was called against Iulius secundus by some of Lewis the twelfthes faction Guicc hist l. 9. Che de canonisti autoritata del convocare i Concilii nelle risedere solamente persona del Pontifice But it was not so much the Canonists as one principall one which was Philippus Decius of Millaine where the Councell began Car. Mol. annot in Decij Consil 37. who defended the cause as appeares out of Carolus Molinaeus his Annotations vpon Decius counsels so that the Popes knew what they did when they shewed and granted so many favours and priviledges to the Vniversitie of Bononia as Gregory the ninth dedicates his Decretals to Bononia so Boniface the eight his Sext and Iohn the two and twentieth his Clementines and Extravagants thus they are formally qualified by orders and because our Ecclesiasticall officers are not so some take and make these exceptions so that I will conclude this briefe Digression with this wish not altogether voyd of hope I would more of our learned Civilians were Divines Abbas Panorm Lect. in Decr. 120. or more of our judicious Divines Civilians Cum Theologia Ius Canonicum fraternizent THE SECOND CONCLVSION That vnder the dominion and protection of this Civill State this State Ecclesiasticall is most likely to enjoy all those rights that can any way belong vnto it THough they that sit at the tops and stearnes of States amongst all their great and graue cares doe little regard the opinion or censure of private men since they are no bound to giue a reason of their lawes noâ— an account of their actions their administration being absolute Yet if by these lawes