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
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
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