first among us by William the Conquerour And why should there not be judges partly Spiritual as well as Temporal in all Courts As it was anciently among our Ancestors the Saxons or at least why should not the Supream Court of justice which is to give Law to all other inferiour Courts be well tempered and mingled with all sorts of men Ecclesiastical and Civil the most learned wise and choicest that can be found in the whole Kingdom Why not Priests and Levites admitted into the number as well as in the Sanedrim of the Iews which was equal to our Parliament and was first instituted by God himself And I take it there can be no just exception but that our Christian Kingdomes may most safely follow the general Rules of Policy and Government which God ordained among his own chosen people without any imputation of judaism Now among them some cheif Fathers of the Priests and Levites were not only judges and elders in their own Cities which were allowed them to the Number of forty eight in the whole but sate with the Elders of other Cities and were Iudges and Officers over Israel Yea many things by Gods law were wholly and cheifly reserved to the Knowledge and Sentence oâ— the Priests As Leprosie Iealousie Inquisition for Murder Falsewitnesse and such like which now among us for most part belong to the Common-law in which cases the People and Elders were to consult the Priests and take direction from them And so Bertram in his Treatise De Politia Iudaica cap. 9. doth make it manifest Prorsus est extra Controversiam judices manicipales cujusque Civiâ—atis ut vocantur seniores fuisse Chiliarchos Centuriones quinquagâ—narios decuriones tot quot esse poâ—erant in quaque Civitate ita ut ex illis Levitae quidam in praefectos assumerentur si modo in ea aliquot erant Levitae sin minus ex proxima urbe Levitis assignata advocabâ— ntur And again in his Cap. 10. David in Civili politia dicitur ex Levitis destinasse judices prafectis sexies mille Ex Levitiâ— judices praefecti assumpti sunt hac ratione ut primum essent ex Levitis quidam qui Adsessores essent Iudicum Ordinariorum Municipalium qui seniores dicebantur Qui aliquando de plano ut vulgo loquuntur judicarâ—nt de rebus leviâ—ribus quales erant pecuniariae vel soli vel assumpto uno aliquo ex loci vel Vrbis seâ—ioribus Deinde ut essent etiam quidam alii qui judicatas res exequerentur Vel certe quod verisimilius est qui assessores erant judicum ordinariorum qui ut ipsi de rebus pecuiariis cognoscerent judicarent ipsamque rem judicatam exequerentur c. Ex eadem familia adhibiti sunt ad regendam ad Civilem politiam gubernandam Ita tamen ut nulla esset utriusque politiae confusio permixtio Et cap 11. Ad utrumque judicium tam civile quam Ecclesiasticum adhibiti sunt Levitae in praefectos eodem videlicet modo quo eos ad id muneris desig naverat David c. Thus and much more to this purpose Bertram doth often throughout his Book deliver his judgement that the priests and Levites were Judges in the civil Courts of Justice and not only in the Ecclesiastical To this Sigonius agreeth lib. 6. Repub. Hebraeâ—rum cap. 7. speaking of the Sanedrim Inivêre hoc Concisium Rex cum principibus populi ac septuâ—aginta senioribus populi Pontifex cum principibus sacerdotum scribis id est legis doctoribus ut per spicere liqueat ex Evangeliis ubi agitur de judicio Christi Voco autem principes populi duodecim princâ—pes tribuum qui Regâ— assidebant Quare Ioseph ab Arimath Senator sive decurio nobilis idem Concilii particeps fuit siquidem scriptum â—st ipsum cum caeteris assensum damnationi Christi non praebuisse Principes autem sacerdotum dico illos qui vicenis quaternis sacer dotum classibus seu vicibus singuli singulis praeerant Scribas vero ipsos legis Doctores quos Prophetas Iosephus vocavit It is manifest hereby and by the reasons alledged already in cap. 2. that is a gross error of Doctor Burgesse who affirmeth that in Numb 11. There is no foot-step appears that the Priests were any of the 70. Elders appointed by Moses Now seeing David appointed no lesse then six thousand Levites for the outward businesses it could not be but that many of them were employed in their secular and civil affairs whereas now there is not one hundred of the Clergy imployed throughout our whole Kingdome there being not above two or three Justices of peace in a whole Shire But their presence and assistance at publick meetings of Justices as at the Assises and Quarter-sessions and other occasions is very necessary to the rest of the inferiour Clergy who wil otherwise be crushed and trampled on in many businesses debates and contentions that do happen continually from the perverse and obstinate party of the Laity For Laici semper sunt infesti Clericis is a true saying in the Common Law The Priests the Sons of Levi saith God shall come neer or forth out of the Cities where they were placed in every Tribe and by their word shall all striâ—e and plague be tryed Remembring alwayes that doubtful and weighty matters were reserved to the great Council of Priests and Judges that sate in the place which the Lord did chuse for the Ark to rest in as Deut. 17. 8. 9. c. If there come a matter too hard for thee in judgement between blood and blood cause and cause plague and plague of matters in question within thy gates thou shalt arise and go up to the place which the Lord thy God shall chuse and shalt repair unto the Priests and Levites This Council or Senate of the Elders residing at Ierusaâ—em in Iehosophats time who no doubt did not infringe but rather observe the Tenour of the Law consisted of Levites and of Priests and of the heads of the Families of Israel And had Amazias the high priest cheif over them in all matters of the Lord as Zebediah a Ruler of the House of Iudah cheif for all the Kings affairs and was a Continuance of the 70. Elders which God adjoyned unto Moses and bare the burden of the people with him And this Court cannot be better resembled among us then to our Parliament for there was but one Council of that nature in the whole Land of Iury and that consisting of some of the cheifest of every Tribe and they not only debated and concluded the highest affairs of that Realm as War peace appeals from all inferiour Courts punishments of whole Cities and Tribes and such like but also ruled and rectified all cases omitted or doubted in Moses Law and were obeyed throughout the Land â—pon pain of loosing goods or life or being for ever excluded from the people of
born mininster to intermeddle with secular affairs and therefore it is likewise lawful for the mean born so to do And so in my Conscience I speak it in the presence of God and great noble men it is most lawful for them to intermeddle with secular affairs so as they be not intangled as the Apostle calls it with this intermedling as to slight and neglect the office of their calling which no minister noble or ignoble can do without grievously sinning against God and his own Conscience It is lawful for persons in holy orders to intermeddle it is without question or else they could not make provision of meat and drink as Beza interprets the place It is not lawful for them to be thus intangled and bound up with secular affairs which I humbly beseech your Lordships to consider not as a distinction invented by me but clearly expressed by the Apostle himself And thus my noble Lords I shall without any further molestation and with humble thanks for this great patience leave this great Cause of the Church to your Lordships wise and gracious consideration Here is my Mars-Hill and further I shall never appeal for justice Some assurance I have from the late solemn vote and protestation of both Houses for the maintaining and defending the power and priviledges of Parliament that if this Bill were now to be framed in the one House it would never be offered without much qualification as I perswade my self it will not be approved in the other Parliaments are indeed omnipotent but no more omnipotent then God himself who for all that cannot do every thing God cannot but perform his promise A Parliament under favour cannot unswear what it hath already vowed This is an old Maxime which I have learned of the Sages of the Law a parliament cannot be felo de se It cannot destroy or undo it self An Act of parliament as that in the 11. and another in the 21 Rich. 2. made to be unrepealable in any subsequent parliament was ipso facto void in the constitution why Because it took away the power and priviledges that is not the plumes and feathers the remote accidents but the very specifical forme essence and being of a parliament So if an Act should be made to take away the Votes of all the Commons or of all the Lords it were absolutely a void Act. I will conclude with the first Epistle to the Corinthians Cap 12. Vers. 15. If the Foot shall say because I am not the hand I am not of the Body is it therfore not of the body Vers. 20. But now are they many Members yet but one Body Vers. 2â— And the Eye cannot say unto the Hand I have no need of thee nor again the Head unto the Feet I have no need of you Some Annotations upon the Arch-Bishops SPEECH WHereas the Arch-bishop saith Sect. 3. That the Bishops sate in parliaments and all publick Assemblies of State a thousand years it is certainly true as appears fully by the Subscriptions of their names to all constitutions Laws and Ordinances made in the several great Councels of the Kingdome in the times of the Saxon Kings the manner being then to give their assent not by verbal voting but by subscribing their names as fully appears in Sir Henry Spelmans Edition of the Councells at the end of all such Assemblies and Councells as were then held And whereas the Arch-bishop saith that the princes of the Norman race erected the Bishopricks into Baronies it is very true as Cambden sheweth in his Britannia pag. 170. And so the great Abbots also heretofore by right and custome were peers of the Kingdome and did sit in parliaments to order decree and determine But the Conquerour ordained both Bishops and Abbots to be under military Service erecting every Bishop and Abbey at his Will and pleasure and appointing how many Soldiers he would require of them to be furnished for him and his Successors in times of Hostility and War So that the Tenure and Title of Barons being imposed on them it was no addition of honour to them they being superiour to Thanes or Barons though as Cambdon saith out of Mathew Paris That which was then complained of by the Cleagy and accounted as a burden in the age ensuing was accounted as the greatest honour And so it hath continued as a Title of Honour â—o the Bishops Whereas the Archbishop saith That the Word and Sacraments the means of our Salvation will not be effectually received from those Ministers whose persons shall be so vilified and dejected as to be made no parcels or fragments of the Common-wealth This doth certainly prove too true Religion it self is vilified and the Word of God and his Sacraments neglected almost in every parish because the persons that should perform the duties and offices are become contemptible for want of that Honour and Respect which they enjoyed legally heretofore Therefore God anciently in the Kingdome of Israel did greatly honour the Tribe of Levi when he made the priests Levites the principal officers Judges in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. The Administration of law and Justice throughout the Kingdome depended oâ— them principally For God made his Covenant with Levi of Life and Peace The Law of Truth was in his Mouth The Priests Lips should preserve knowledge and they should seek the Law at his Mouth Mal. 2. 5 6 7. and so Ezekiel 44. 23. They shall teach my people the difference between the holy and prophane and cause them to discern between the unclean and the clean and in Controversie they shall stand in iudgement and they shall iudge according to my Iudgement and they shall keep my Laws and my Statntes in all my Assemblies They beiâ—g the principal Judges and Lawyers in that Common-wealth of Gods own Constitution And whereas it is now granted on all hands that there was three Courts of Justice in that Kingdome 1. The great Councel of 70 Elders 2. The Court of Judgement consisting of 23. 3. The Court of some three or some few more The Priests and Levites were principal men both Judges and Officers in all Courts both Scophtim Schoterim as 1. Chron. 19. 8 11. both to give Sentence and Judgement and also to execute the same So the Divines do affirm also in their late Annotations upon 1 Chron. 26 29 30. 2. Chron. 19. 8 11. They did study the Judicial and â—olitick Laws and had power to see the Law of God and injunctions of the King to be observed and to order divine and humane affairs And they held also other Honourable offices for we read that Zechariah a Levite was a wise Councellour and Benajah a priest son of Iehojadah was one of Davids twelve Captains being the third Captain of the Host for the third moneth and in his course consisting of 2400 was his son Amizabad Benajah was also one of David's principal worthies
So Dr. Burgesse termeth the Learned Dr. Davenant Bishop of Salisbury only a speculative Divine He being an eminent and principal Divine Head of Queens Colledge in Cambridge and publick Professor and chosen by King Iames to be sent to the Synod of Dort and by his Learned works publickly famous and renowned Such malapert language against such Honourable and eminent Bishops from an inferiour Doctor is not to be endured without sharp censures Now though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affairs yet that is not absolutely forbidden but in a qualified sense as in the famous Council of Clâ—veshoe under Cuthbert Archbishop of Canterbury Anno 747. Can. 1. Negotiis secularibus plusquà m Dei servitiis quod absit subditus existit To attend secular affairs more then spiritual and to be wholly imployed and conversant in Temporal matters without due regard to the better part But it will not hinder sacred studies nor the diligent preaching of the Gospel that some principal men at convenient times have a charge and over-sight of Temporal affairs and the carriage of publick businesse And concerning this see more in Bishop Davenants Determinations at Cambridge Quest. 11. Civilis jurisdictio jure conceditur personis Ecclesiasticis Thus much might serve for Reply to the Examiner Dr. Burgesse especially upon the fifth reason which I hold to be the only thing material in the whole Discourse for the rest will appear to be needlesse if this be clear'd But if he would look back to former times he shall find that our Kingdome and Government followed the ancient manner of Gods own people of Israel whose Ceremonies and Rituals though they be now abolished yet the general rules of Justice Equity Government and Order do still remain And as God made the priesthood then honourable in the Kingdome of Israel and committed a great part of the Government unto them so doubtlesse now under the Gospel the priesthood ought to be Honourable and to have a principal part in the ruling and governing of the Kingdome To be a Priest in Israel was to be a cheif man Levit 21. 4. and therefore in all their Courts of Justice the priests and Levites were cheif men in authority for deciding all causes both in the great Court of Sanedrim at Ierusalem which was a Continuation of the 70. Elders appointed by God himself Numb 11. and was answerable in authority to our Parliaments it being the highest Court of Judicature in that Kingdome and so in the second Court of Judgement as our Saviour calleth it Mat. 5. 22. where there were 23 Judges whereof 7. were of the Laity as we now call them Elders of the Cities and every good City consisted of _____ Families unto which 7. of the Elders there were added 14 Priests and Levites as Iosephus sheweth lib. 4. cap. 8. where though he seem to say that the number of the Judges was seven yet if his next words following be well observed he sheweth the addition of two priests and Levites to each of the other Magistrates of the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intellig it singulos magistratum gerentes quibus singulis bini erant additi adsessores periti juris quos Iosephus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocat Septem ergo municipes loci erant judices praeterea adsessores quatuordecim qui ex Levitis maxime sumebantur his supernumer arii accessisse videntur unus alter So Grotius in Mat. 5. 21. and so also the English Translation doth render the place In every City or Township let there be seven Governours such as are approved in vertue and famous for their Justice and let each of these Magistrates have two Ministers of the Tribe of Levi. In this Court of Judgement all manner of causes were heard of Life and Death whatsoever matters of Controversie within their gates Ecclesiastical or Temporal Yet excepting some weighty businesses concerning a whole Tribe or the high priest or a false Prophet which belonged only to the great Council at Ierusalem Whether also they might appeal in any doubtful cause which was too difficult for the inferiour Courts Iudices in portis cujusque Civitatis jus super causis majoribus reddebant in homicidas lege agere solebant de quibus agitur Deutr. 16 18. 21 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 autem paena erat gladius quia de homicidis inibi cognoscebatur ut Moses nos docet Christus Grotius in Mat. 5. 21. When King David was old and neet his Death he appointed Salomon to be King after him and caused a Parliament of all Israel to be assembled wherein he gathered together all the Princes of Israel with the Priests and Levites 1 Chr 24 1. 2. In this great Parliament the priests and Levites were not omitted not in any Court of Justice in that Kingdome For as it is p. 4. There were six thousand of them appointed Officers and Judges throughout the land of Israel which is the thing that now many of our Common people do much dislike not well induring a few Justices of Peace to be of the Clergy whereas we have the example of David guided and directed by the Spirit of God as the Text saith 1 Chron. 28 12 13 19. So disposing and ordering the Levites that he appointed some for the outward businesse over Israel for Officers and Judges a thousand and seven hundred were Officers of Israel on this side Iordan in all businesses of the Lord and in the service of the King This Text is very plain to prove that the same man may be employed in Ecclesiastical matters of the Church as also in the Kings Service So pag. 32. David appointed two thousand and seven hundred cheif Fathers to be Rulers over the Reubenites Gadites and the half Tribe of Manasses who were beyond Iordan for every matter pertaining to God and affairs of the King and c. 26. 14. Zecharias a Levite is commended for a wise Counsellour But that now any of the Clergy should be Councellours Judges or Officers unto Princes is accounted by some an unlawful thing or at least not very commendable Whereas we see by this very law and direction of King David that the Levites might attend businesse belonging to the worship and service of God and instruction of the people as also of the publick service and affairs of King and State So the Divines in their late Annotations on the Bible do acknowledge that the Levites did study the Judicial and politick Laws and had power to see the law of God and injunctions of the King to be observed and to order divine and humane affairs 1 Chron. 26. 29 30. 2 Chron. 19. 8 11. So the Learned Grotius Sicut lex erat uan praeptrix divini omnis humanique juris ita apud Hebraeos penes eosdem erat juris utriusque interpretatio Upon Mal. 2. 4. and so other Commentaries do affirm as Lavater in cap. 23. Per
God as they pronounced or prescribed Thus the reverend and Learned Bishop Bilson in his perpetual Government cap. 4. Besides in every City there were private and peculiar Rulers 21. in number as Iosephus saith and also to every Magistracy in those Cities there was allotted two of the Tribe of Levi for assistance as Iosephus witnesseth and if those could not determine the busâ—nesse then they did appeal to the great Council And so Grotius sheweth most accurately upon Mat. 5. 21. Now God appointed these offices and dignities and power of Judicature to the Priests and Levites besides their attendance upon Gods service and the Course of every Priest and Levite was but one Week in half a year to attend at the Temple as Iosephus and Scaliger and Selianus doth shew with other accurate Chronologers so that beside their attendance upon Gods Service they had time and leisure enough to be helpful in the Government of the Kingdome Yea sometimes the principal Judges were chosen out of the Tribe of Levi as at the beginning of their Common-wealth Moses himself of that Tribe the greatest prophet prince that ever was among them So after in succeeding times Ely the high Priest was made Judge in his time So also Samuel a Levite was cheif Judge in Israel as 1 Sam. 7. 15. who judged Israel all the dayes of his life And he went from year to year in circuit to Bethell and Gilgal and Mispeh and judged Israel in all those places much alike as our judges do go their Circuits every year throughout the Land p. 17. And his return was to Ramah for there was his House and there he judged Israel and there he built an Altar to the Lord. And his three Sons after him Samuel made them being Levites Iudges over Israel though they did not walk in their Fathers ways but turned aside after lucre and took bribes and perverted judgement After the Captivity of Babylon for some 500 years till the coming of Christ the Priesthood had the greatest stroke in the Government As Ezra the Priest and brother to Iesus the high priest that returned from the Captivity whose memory is honourable among the righteous as learned Montague sheweth against Selden pag. 377. He had Commission from the Persian Emperor Artaxerxes to govern and order the Controversie Ezra 7. 12 25. and gave him authority to set Magistrates and judges which might judge the people and power to execute the laws of God and the King pag. 26. and to inflict punishments unto death or banishment or to confiscation of goods or imprisonment So that Ezra had great authority and full power given him and his worthy Acts are there recorded So afterwards under the Maehabees who were priests the Common-wealth was governed and it pleased God to make that Family victorious as any other almost that ever governed that Common-wealth as Sir Walter Raleigh sheweth lib. 2. cap. 15. If thus it were anciently among the chosen people of God why then should any in these dayes be so much displeased that a Bishop or a Clergy man should have any part in the Government of the Common-wealth or assistance of Government for the better Ordering and Directing of judgment or to be Counsellor to a Prince as Zechariah the Levite was a wise Counsellor 1 Chron. 26. 14. Benajah a Priest son of Iehojadah was one of David's twelve Captaines being the third Captain of the host for a moneth and in his Course consisting of 2400 was his son Amizabad Benajah also was of David's principal Worthies having the name among the three Mighties He was also Captain of the guard to David and after the death of Ioab he was made Lord General of the Host by King Solomon in Ioabs room 1 Kings 22. 35. So and much rather may a Clergy men now be an Officer in great place or a Justice of Peace in the Country who handles Matters of Equity and good Conscience for preserving of publick peace order and quietness among neighbours wherein happen many businesses that depend much upon the Conscience of a Justice and the Equitable rules of Scripture whereof Clergy men are the most competent interpreters As also many Causes happen touching the Estates and persons of the Clergy who have little reason to be subject onely to secular Judges without some of their own tribe on the bench to see fair carriage and indifferent dealing But for matters of Religion concerning God and his Worship and difficult points of Divinity the Clergy then were and so ought now to be the principal men to be imployed as may clearly appear by the doings of K. David about removing of the Ark to the place that he had provided for it upon which text King Iames hath written a very pious and excellent Meditation Pag. 81. upon the 1 Chron. 15. some of those words are fit to be here recited When the Ark of God whereunto they sought not in the dayes of Saul had continued long at Kiriah-jearim David out of his Zeal and Piety was moved to prepare a Tent for it in the City of David and when he began to remove it he called a great assembly of principal Men but did not make that use of the Priests and Levites as he ought to have done and therefore the Action prospered not but there happened a terrible judgment upon Uzzah which hindered the progresse of the good work and David was afraid of God that day saying How shall I bring the Ark of God home to me so the Ark rested in the House of Obed-Edom But afterwards upon better advice David perceived his Errour and confesseth it Cap. 15. 12 13. Speaking to the Chief of the Priests and Levites Sanctify your selves both ye and your brethren that you may bring up the Ark of the Lord God For because you did it not at the first the Lord God made a breach upon us for we sought him not after the due order This was a great and a godly work that was then intended and therefore King David called a great Assembly about it 1. Of the Elders of Israel 2. Of the Captaines of thousands and hundreds whose Names and Praises are recorded 3. The Priests and Levites Who did it not at the first But now upon better advice King David assembled at first the Children of Aaron and the Levites v. 4. So that men of all Estates were now present in this godly work This is to be marked well of Princes and of all those of any high Calling or Degree that have to do in Gods Cause David doth nothing in matters pertaining to God without the presence and especiall Concurrence of Gods Ministers appointed to be spiritual rulers in Gods Church And at the first meant to convay the same Ark to Ierusalem finding their absence and want of their Counsel hurtful therefore he saith to them Ye are the Chief Fathers of the Levites because ye did it not at the first Thus saith King Iames of blessed memory but
the present practise and Law confirmed by the continual practise of many hundred years The Law being thus made by the Conquerour to separate the Ecclesiastical Court from the Temporal there followed after in succeeding times Statutes to direct and appoint what causes shall belong to the Bishops Jurisdiction As the Statute called Circumspecte agatis made 13. Edw. 1. and Articuli Cleri 9. Edw. 2. which besides others Coke doth expound in the 2. Instit. at large pag. 489. 599. So that the Ecclesiastical Laws and Courts being thus setled by ancient Statutes and Magna Charta and besides long use and Custome the Laws are Fundamental and necessary as well as any part of the Common-law and cannot be wholly taken away without great injustice confusion and great disorder in the Kingdome and Church as it happen'd most pitifully in these troublesome times But Parliaments are obliged to maintain the Fundamental Laws of the Land as they have often professed solemnly in many of their Declarations Protestations and Remonstrances But in conclusion they have overthrown all Ecclesiastical Courts and Laws though never so ancient and Fundamental and now they would pretend to set up new laws and orders which they call Presbyterian Government by Lay Elders in every Parish a fond and foolish project contrary to the Laws of God and Man such as they have heard to be at Geneva and some other places beyond Sea where there are no Lords Knights Esquires or Gentlemen as with us in England But their new States are popular without degrees of Honour and distinction of Gentry They do as their Neighbours at Strasborough and the Switzers of whom Bodin saith lib. 6. c. 4. Argentinenses Caesa prostrata nobilitate cum imperium populare invasissent legem communibus suffragiis tulerant ne quis summos in Civitate Magistratus adipisceretur nisi a cerdonibus aut coriariis aut id genus sordidis opificibus stirpem traxisset idenim veteribus Grâ—cis usit atum erat ut in iis civitatibus quae popularia imperia stabilire ac tueri vellent cives omnes quantum quidem fieri posset opibus honoribus imperiis ac vitae conditione exaequarent ac si quis prudentia justitia fortitudine aut ulla virtute caeteris praeluceret ac emineret hunc ostracismo exterminabant aut ne virtutitam aperte bellum indicere viderentur accusationibus calumniis opprimebant atque id unum efficere conabantur ut singuli Cives non magis sui similes essent quam omnes omnium They either banished or put to death all their Nobility and so made themselves a popular state and further made a law that no man should bear any publick office among them but such as would derive their Discent and Pedegree from some base Trade a Cobler or Carrior or such like Among such people Presbyterian Government may be better allowed then in a Kingdome flourishing with all degrees of Honour Dukes Marquesses Earls Barons Knights c. But where only Tradesmen are chapmen Pedâ—ars and Artificers as they are at Geneva there any government in the Church may better be tolerated then in a Monarchy The Glossary sheweth to that purpose that Tradesmen are base fellows in Herauldry and among base fellows any base government may serve the turn Burgenses Mercatores sunt sordidum hominum genus as Tully said Burgenses dum cauponandis mercibus rei Mechanicae navarent generosae turbae militiam omnino admiranti despectui erant adeo ut cum illis nec connubia jungerent nec Martis aleam experirentur and so also the Civil law saith patritii cum Plebeis conjugia ne contrahunto And in our law it is reputed a disparagement for a Ward in Chivalry which in old time was as much as to say a Gentleman to be married to the Daughter of one that dwelt in a Burrough as Lambard sheweth in his perambulation of Kent pag. 504. So the old Statute of Merton Anno Dom. 1235. cap. 7. De Dominis qui maritaverint illos quos habent in custodia sua Villanis aliis sicut Burgensibus ubi disparagentur c. Lord Coke sheweth what causes belong to the Court Christian viz. Probate of Wills and Testaments Legacies Reparation of Churches and Church-yards Tyths Oblations Mortuaries and such like duties Matrimonial causes degrees of Affinity or Consanguinity Divorces and what else belongeth thereunto And divers other particulars as appears in divers statutes and the Books of the Civil Lawyers as punishment of Adultery Fornication and Incontinency Incest with many other the like as Heresies Schismes Errors Abuses Offences Contempts and enormities as Lord Coke saith 4. Instit. pag. 325. and so also the excellently learned Lawyer Dr. Cosin Dean of the Arches in his Apology for Ecclesiastical Courts and their proceedings against Simony Usury Defamation Sacriledge Disapidations c. But now the Presbyterians neglect and cast off most of these particulars that there is no punishment for those gross offences and sins which are not fit to be mentioned among Christians saith the Apostle There is of late an infinite number of bastards gotten and the Justices of peace only take care for keeping the Bastard But there is no punishment or correction for the scandal to Religion and the vulgar people go together like Dogs and Bitches without licence or publication of banes in any parish The Holy Communion is cast aside and neglected in most parishes most shamefully The Common-people in most parishes will rather be without the Sacrament then give one penny to buy Bread and Wine for it that they are become Atheists in most places and many Sectaries professe publickly that they will not have Churches or Stone-houses nor Ministers or Magistrates And yet the Parliament pretended to reform all according to the word of God in all things to advance the Throne of Christ and the Tribunal of Christ with all his holy ordinances in full force and power as the Language is of the Presbyterian Ministers CHAP. VIII Some Observations out of the Civil Law in the Empire concerning the separation of Courts and some also out of the ancient Statutes as Selden hath related them Lord Cooks Defence of the Bishops being in Parliament and of the Convocation and High Commission and other Ecclesiastical Courts AS the Courts Ecclesiastical and Temporal were separated in our Kingdome so anciently there was some such division in the Empire yet the Emperour gave great power and authority to the Ecclesiastical Judges according to that which Iustinian saith of spiritual Causes in the Novell 123. si pro Criminal si Ecclesiasticum negotium sit â—ullam Communionem habento Civiles Magistratus cum ea disceptatione sed religiosissimi Episcopi finem imponunto If it be an Ecclesiastical Suit let the Civil Magistrates have nothing to do there with that plea but let the Bishops end it Whereby it appears that prohibitions from the Temporal Courts were not then allowable which certainly came not into use till after
the Councel of Clarendon under Hen. 2. Wherein the Clergy were inforced to appear in the Temporal Courts one Canon thereof being Clerici accusati de quacunque re summoniti a Iusticiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum in Curia Eeclesiastica unde videbitur quod ibi sit respondendum It a quod Regis Iusticiarius mittet in Curiam sanctae Ecclesia ad videndum quomodo res ibi tractabitur si Clericus vel confessus vel convictus fuerit non debet eum de caetero Ecclesia tueri But touching this and the rest of the Constitutions in that Council Math. Paris doth sharply inveigh against them Hanc Recognitionem five Recordationem de Consuetudinibus libertatibus iniquis dignitatibus Deo detestabilibus Archiepiscopi Episcopi clerus cum Comitibus Baronibus proceribus juraverunt And as he addeth His itaque gestis potestas laica in res personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmur antibus Episcopis potius quam resistentibus usurpabat And this appeareth also by that which Selden relateth in his notes upon Eadner pag. 268. that long after in Edward the seconds time the Clergy had so many oppositions and hinderances in their proceedings from the Temporal Courts that they exhibited a petition in Parliament wherein they recite the grant and constitution of Will 2. allowing them their own Courts by themselves and specify their complaints particularly which he calleth Gravamina Ecclesiae Anglicanae and saith they are those mentioned in the proem of Artiâ—uli Cleri And in this age we have great cause to complain of Prohibitions but thereof I will say no more now as for the Temporal Courts the Conquerour appointed them to follow his Court royal which Custome continued for many years till under King Iohn at the instant request of the nobility it was granted Ut Communia placita non sequerentur Curiam i. e. Regis sed in loco certo tenerentur That the Court of Justice for Common Pleas should not follow the Kings Court Royal but be held in a place certain as now commonly they are in Westminster-Hall Whereas before the Kings appointed one Grand Lord Chief Justice of all England who for his authority and power was a greater officer both of State and Justice then any in these last ages and ever since that the greatness of that office was abated by King Edw. 1. most of those great Justices were Bishops as Sir Henry Spelman sheweth in his Caralogue of them Glossar pag. 401. Dignitate omnes Reges proceres potestate omnes superabat Magistratus De potestate valde inter alia claret quod quatuor summorum judicum hodiernorum muneribus solus aliquando fungeretur scilicet Capitalis Iustitiarii Banci Regis id est plâ—citorum Coronae seu criminalium Capitalis Iusticiarii Banci Communis id est placitorum Civilium Capitalis Baronis Scacarii hoc est Curiae ad sâ—crum patrimonium fiscum pertinentis c. Most of these great Justices were Bishops as appears by the Catalogue of them they being the principal men for Knowledge and Learning in those dayes and had no doubt power of voting in all Parliaments Councils and assemblies of State And so in these later times Lord Coke sheweth their abilities and rights 4. Instit. pag. 321. The King is well apprised of all his Judges which he hath within his realm as well spiritual as temporal as Arch-bishops Bishops and their officers Deanes and other Ministers who have spiritual jurisdiction It is declared by the King the Lords Spiritual and Temporal and the Commons in full Parliament That the spiritualty now being called the English Church always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it hath been alwayes thought and is also at this hour sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine of such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain The Adversaries have made divers objections against our Arch-bishops and Bishops Ever since saith Coke But these pretences being in truth but meer Cavils tending to the scandal of the Clergy being one of the greatest States of the realm as it is said in the Statute of 8. Eliz. cap. 1. are fully answered by the said Statute and Provision made by authority of that Parliament for the establishing of the Arch-bishops and Bishops both in praesenti in futuro in their Bishopricks By the Statute also of 39 Eliz. cap. 8. the Arch-bishops and Bishops are adjudged lawful as by the said Act appeareth And by these two Statutes these and all other objections against our Bishops one hath answered which we have thought good to remember seeing we are to treat of their jurisdiction Ut obstruatur os iniquae loquentium saith Lord Coke Yet the fury and rage of these times have stirred up more anger which in the issue will turn to the Confusion and Dishonour of them that began these wars and broyles against the Church and Bishops and fundamental Laws and Statutes which have so fully asserted their rights and authority Thus the Lord Coke premiseth being to treat of the Ecclesiastical Courts and all the jurisdiction belonging to the Clergy and established by the fundamental Laws of the Land against both Papists and Puritans and first he beginneth with the Court of Convocation and of the high Commission in Causes Ecclesiastical which is absolutely necessary for the suppression of all manner of Errots Heresies Schismes abuses offences Contempts and enormities But upon suppression of this Court by the late long Parliament there hath broken forth such an infinite number of heresies schismes sectaries and a rascal rabble of factions as is prodigious to relate and intolerable to be suffered For as it is in the Common Law if there were not Assises and Sessions to punish Malefactors Theeves Cuâ—purses Offenders and Rogues of all sorts the Land would be so Oppressed with the Multitudes of them no man could enjoy his house or goods freehold or life therefore in London they have every moneth a publick sessions to punish Condemn and Execute all sorts of Malefactors And Corporations in principal Cities have the like authority by Commission and Patent from the King But for the high Commission to punish Offenders against Religion and the Church Lord Coke saith pag. 331. That the Kings Majesty hath and Queen Elizabeth had before him as great and ample Supremacy and jurisdiction Ecclesiastical as ever King of England had before them and that had justly and rightly pertained to them by divers other Acts and by the ancient Laws of England if the said clause of annexation in the said Statute of 1. Eliz. had never been inserted That it was a gâ—osse Error
arise in those first ages most of which heresies were such as were fit to be beaten down by authority rather then by reason and argument they being so impious insolent and blasphemous so after his time when he had setled the Bishops authority yet there being two Courts where did arise many differences and debates between the Bishops and the secular Judges of that time touching cognisance of some Causes Iustinian the Emperor made a lâ—w like unto that Circumspecte agatis of our King Ed. 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novel is thus Si delictum sit Ecclesiasticum egens castigatione vel mulcta Ecclesiastica Deo amabiles Episcopi hoc discernant nihil commnnicantibus clarissimis provinciae Iudicibus Neque enim volumus talia negotia scire omnino Civiles Iudices cum oporteat talia Ecclesiastice examinari emendari secundum sacras divinas regulas quas etiam sequi nostrae non dedignantur leges And further for the greatness of the Bishops authority it will appear fully if we look upon the Lawes as they lye concatenaâ—ae in the same title where it is said of the Bishops Cum sint ordinarii Iudices And again Similes praefectis praetorio and further Ordinarie quoque procedant The linked Texts in that title of the Code as they stand cited do fully shew the greatness of the Bishops Coâ—â—â—â— and authority when they are compared and said to be Similes praefectis praetorio who were Illustres Iudices and so stiled in the law they being indeed the most supreme Judges in the whole Empire there being but three in that spacious Empire One in Asia Praefectus praetorio Orientis Another in Europe Praefectus praetorio Illyrici The third in Africa Praefectus praetorio legionibus militiae Africanae The Civil Magistrates were respectively Judges of the Causes which the Emperour had translated from the Empire to the Church which when the Emperour had done and made the Bishops the Judges in the Church as the praefecti praetorio were in the Empire before it appears hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their vicar-generals whom we now call Chancellors as a learned Civilian observes who are no upstarts in the world rising out of the Bishops Sloath as one though otherwise Learned and Eloquent mis-called them but had their original from the law it self Touching whom I will here say something out of the learned Civilians because commonly their place and original is much mistaken by the ignorantly zealous people who do now abound in the world and think nothing lawful in government unless their be express text of Scriture for it as if no calling government or subordination of officers in the Church were lawful but what is expressely and fully set down in the Scriptures and no power and authority left in the hands of Christian Kings and Magistrates to appoint Judges and Officers for Church-discipline as well as for Civil Judicature Therefore to return as the praefecti praetorio quia illustres erant antestabant caeteris dignitatibus ideo habebant vicarios suos in Civilibus causis audiendis terminandis So were the Bishops then and so are they now Illustres judices antestabant antestant caeteris dignitatibus in Ecclesia For the law parallels them in the Church with the Chief Judges in the Empire as well in this as in the rests of the Parts of their Honour wherewith the Emperour had honoured them and the Laws honour them at this day Iustinians Code hath sundry lawes some of his own some of the Emperours before him even from the dayes of Constantine the great which shew that Bishops in their Episcopal audience sate not without their Chancellors although their Chancellors sate often without the Bishops whose higher charge in Christs Church permitted not the Bishops presence in court-Court-Causes ordinarily And though not under the name and title of Chancellors nor alwayes vicar generals officials or Commissaries yet they had other titles but the same offices Ecclesiasticâ— or Episcoporum Ecdici as much as to say as Church Lawyers or Bishops Lawyers professed Civilians and Canonists of that age the very self same officers and office that the Bishops vicar-generals then were and now are who together with the Bishops then made and do now make but one and the same Tribunal and Consistory their Commissions they held from the Bishops but their Jurisdiction from the Law And the Cause why the Imperial power furnished the Bishops with these officers was the multitude and variety of Ecclesiastical Causes more in that age then now the decision whereof in their Consistories being left to the Bishops the Emperor doubted might have drawn them from prayers and divine exercises And a second reason was that the cause of the cognisance of their Courts were more likely to have thereby a more speedy ready and Judicious trial before Judges of the same learning which require a whole man then before Judges of another then an higher requiring as the Bishops pastoral office doth a whole man too And a third reason also may be added because the Clerks suites and quarrels should not be divulged and spread abroad amongst the secular sort which trenched many times upon the whole profession especially in capital matters wherein Princes anciently so much tendered the Clergy that if a Clerk had committed an offence worthy of death or open shame whereby he became perpetually infamous he was not first executed or put to open shame before he was degraded by the Bishop and his Clergy and so was executed and put to â—hame not as a Clerk but as a lay malefactor for the Honour and Dignity of Priesthood It were to be wished this Order were retained still that Clerks should not passe immediately when they fall into such excesses from the Altar to the Halter but hang or suffer other shame without their Priesthood which Order if it were retained still or might be restored would much honour the Church and no whit derogate from the jurisdiction of the Crown The Determination of a Question made by the right Reverend Iohn Davenant late Lord Bishop of Sarum QUEST 11 th Civil Iurisdiction is by right granted to Ecclesiastical persons IT is by the warrant of Christ himself that the Church doth claim and execute a Spiritual Jurisdiction in punishing the offences of her Children For it can admit an accusation against the inordinate courses of any Christian and hath power to chastise him being by sufficient witnesses convicted either by denying him the Sacraments or if he continue obstinate in his wickednesse by an utter exclusion of him from the fellowship and Communion of other Christians I know none so malignant or unskilful in Ecclesiastical affairs that will deny this authority which indeed goes not beyond excommunication to have been conferred upon Churchmen from the beginning by
of pious memory what had become of that great Work of our Reformation in this flourishing Church of England But I know before whom I speak I do not mean to dine your Lordships with Coleworts the harsh Consequences of this point your Lordships do understands as well as I. The last robe that some persons in holy orders are to be stript of hath a kind of mixture of Freehold and favour of the proper right and the graces of the King which are certain old Charters that some few Bishops and many ancient and Cathedral Churches have purchased procured from the ancient Kings before since the conquest to inable them to live quiet in their own prâ—cincts and close as they call it under a Justice or two of their own body without being abandoned upon every slight occasion to the injuries and vexations of Mechanical Tradesmen of which your Lordships best know these Countrey Incorporations do most consist Now whether these few Charters have their foundation by favour or by right I should conceive under your Lordships favour it is neither favour nor right â—o take them away without some just crime objected and proved for if they be abused in any particular Mr. Attorney General can find an ordinary remedy to repair the same by a Writ of Ad quod damnum without troubling of the two Houses of Parliament and this is all I shall speak to this point And now I come to the fourth part of this bill which is the manner of Inhibition heavy every way heavy in the penalty heavier a great deal in the incapacity the weighing of penalty will you consider I beseech you the small wyers that is poor Causes that are to induce the same and then the heavy lead that hangs upon these wyers It is thus if a natural subject of England inâ—ereâ—â—ed in the Magna Charta and petition of Right as well as any other yet being a person in holy orders shall happen unfortunately to vote in Parliament to obey his Prince by way of Councel or by way of a Commissionerâ— be required thereunto then is he presently to loose and forfeit for his first offence all his Means and Livelyhood for one year and for the second to forfeit his Freehold in that kind for ever and ever And I do not believe that your Lordships ever saw such an heavy weight of censure hang upon such thin wyers of reasons in any Act of Parliament made heretofore This peradventure may move others most but it does not me it is not the penalty but the incapacity and as the Philosophers would call it the natural impotency imposed by this Bill on men in holy orders to serve the King or the State in this kind be they otherwise never so able never so willing not never so vertuous which makes me draw a kind of Timanthes vail over this point and leave it without any amplification at all unto your Lordships wise and inward thoughts and considerations The fifth point is the Salvo made for the two Universities to have Justices of the peace amongst them of their own heads of Houses which I confess to be done upon mature and iust consideration for otherwise the Scholers must have gone for Justice to those parties to whom they go for their Mustard and Vinegar but yet under favour the reasons and inducements cannot be stronger then may be found out for other Ecclesiastical persons as the Bishop of Durhans who was ever since the dayes of K. Iohn suffered by the Princes and Parliaments of England to exercise justice upon the parties in those parts as being in truth the Kings subjects but the Bishops Tenents and therefore not likely to have their Causes more duly weighed then when the ballance is left in the hand of their own proper Landlords The Case of the Bishop of Ely for some parts of that Isle is not much different but if a little partiality doth not herein cast some mist before mine eyes the Case of the Dean and City of Westminster wherein this Parliament is now sitting is far more considerable both in the antiquity extent of Jurisdiction and the warrants whereupon it is grounded then any one of those places before mentioned for there is a clear Statute made 27. Eliz. for the drawing all Westminster St. Clemenst and St. Martins le grand London into a Corporation to be reigled by a Dean a Steward 12 Burgesses and 12 Assistants And if some salve or plaister shall not be applied unto Westminster in this point all that government and Corporation is at an end But this I perceive since is taken into Consideration by the Honorable House of Commons themselves I come now to the last point and the second Salvo of this Bill which is for Dukes Marquisses Earls Viscounts Barons or Peers of this Kingdome which is a clause that looks with a kind of contrary glance upon persons in holy orders It seems to favour some but so that thereby and in that very Act it casts an aspersion of baseness and ignobility upon all the rest of that holy profession for if no persons in holy orders ought to intermeddle in secular affairs how come these Nobles to be excepted out of that universal negative is it because they are nobly born then surely it must be granted that the rest must be excluded as being made of a rough and base piece of clay For the second part of this reason in beginning of the Bill can never bear out this Salvo that the office of the ministery is of so great importance that it will take up the whole man and all his best endevours Surely the office of the ministry is of no greater importance in a poor man then in a noble man nor doth it take away the whole man in the one and but a piece of him in the other I cannot give you many Instances herein out of Scripture because you know that in those dayes not many mighty not many noble were called c. 1 Cor. 1. 26. but when any noble were called I do not find but they did put more of the whole man and their best endevours upon the ministery then men in holy orders are at the least in holy Scripture noted to have done I put your Lordships in mind of those noblemen of Beraea compared with those of Thessalonica in the 17. of the Acts of the Apostles So that this Salvo for the nobility must needs be under your Lordships favour a secret wound unto the rest of the ministery unlesse your Lordships by your great wisdome will be willing to change it into a Panacea commonplaister both to the one and the other and under your Lordships favour I conceive may be done upon a very forcing argument The office of the ministry is of equal importance takes up the whole man and all his best endevours in the noble born as well as in the mean born minister but it is lawful all this notwithstanding for the noble