but heard some speech of it or if some extraiudiciall discussion had beene vsed heerein why this had beene somewhat but that it should so suddenly and speedily be condemned before it was conceiued or vnderstood this is a great and most scandalous wonder It may be it is not so requisite to extend into a discourse concerning the desert of this cause of Enfiteusi As in the beginning is mentioned seeing such a notable error was committed euen in iudiciall place and calling but because some peraduenture will desire to haue a summarie vnderstanding of the Common-wealths reasons heerein it will not be much from the purpose briefly to touch some of them by which we may cleerely conceiue the lawfull authority which the Senate had for the iustifying of such a law the necessitie that vrged them thereunto and the equitie of the thing instituted and so incidently we may discerne an error which either purposely or by chance crept into the vnderstanding of the words and cause of this law The Pope saies in his Monitorie that the Duke and Senate on the 23 of May 1602 taking occasion vpon a controuersie occurring betwixt Doctor Francesco Zaberella of the one part and the Monks of Pragia of the other they did not onely enact that the Monkes either then or in any time to come ought not to pretend plea vnder any title whatsoeuer to be preferred to enfiteoticall goods possessed by the Laietie nor obtaine propertie in the said goods by the claimes prelation consolidation or extinction of direct line or vpon any other title whatsoeuer their direct right or freehold reserued All these were in the beginning expressed but that the force of this law also was intended and firmely to be extended ouer all other Ecclesiasticall or religious places From this it cannot appeere whether his Holinesse reprehendeth the order of the Senate forasmuch as it extendeth to all places and persons Ecclesiasticall which was decided in the cause betweene the Monkes and the Doctors approuing notwithstanding this foresaid decision in a particular controuersie or whether it may be construed that he reprehends together both the one and other For granting that the Senate had lawfull power to end that sute and to denie that they could ordaine by a generall law that the same should be vnderstood and intended vpon any other such like case occurring I cannot see how a man but of indifferent capacitie can any waies conceiue it considering it is a most euident thing that it belongeth to the same power to make a law vpon an occasion and to iudge particular controuersies occurring in the same Polyt 3. Aristotle sheweth that iudgment is but a particular law and the law a generall iudgement and that it would be sufficient if a Iudge could be found without all partialitie or the law would of it selfe be preualent enough if it could comprehend al particular cases And in Iustinians codex we see L. 3. t 5. ne quis in sua that iurisdiction comprehendeth two heads that is either iudicare or ius dicere the one pertaines to the instituting of that whereon sentence may be grounded and the other in pronouncing the same In Rome the Proctors office was to make generall edicts and to depute Iudges who conformable to them might giue sentence in particular causes If the law were spirituall and the Iudge Secular it could not be vnderstood how he might iudge according to the same Spirituall science and worldly action had no correspondencie the Philosophers say that the rule must be homogenea with that ruled for which cause the Ciuilians affirme with all reason Forum sortiri statutis ligari paria sunt Pau. Cast l. omnes populi ff de instit iur Wherefore he which consents that the Senate hath lawfully determined the cause betweene the Monkes and the Doctor he must needes also grant them power to decree that in generall which hath beene ouerruled in iudgement giuen and ought so to be in all others that shall occurre But if it be vnderstood to reprehend also the examination and end made by the Senate Decius c. quae in Ecclesiarum c. Ecclesia Sanctae Mariae de constâ—â—â—t Alex. cons 201. l. 2. in the case betweene the Monks and the Doctor this may be which manifestly declareth how requisit it was not to haue beene so forward but at first to haue framed a Monitory and principally vpon this point before seeing the processe framed in the sute and controuersie aboue mentioned Considering it is not true that the Doctor was plaintife in that case and the Monks defendants as the Monitorie supposeth it running thus inter doctorem c. ex vna Monachas c. ex altera partibus of the one partie and the Monkes of the other partie But Corsato de Corsati in 1598 hauing bought of Andrea Monaldo eight fields which paied canonate to the Monasterie of Pragia the Doctour 1602. the 12. of Februarie tendred the price to make his draft by border or confine and the second of March the Monkes pretending to be preferred to him as Patrons of the free-hold of those fields they came before the Podesta of Padoua Like our Maior and commenced sute pretending prelation in which cause many actions were tried before the Magistrate till according to the custome of this State by the Doctors Communaltie of Paduaes supplication the hearing of the matter was referred ouer to the Senate The Doctor drew not the Monasterie to a Laie iudgement but the Ecclesiasticks themselues knew well that the determining of this cause belonged vnto a Secular Iudge for this cause they had recourse to the same the which one example onely if there had beene no other gaue iurisdiction to the Podesta and consequently to the Senate in that cause as in expresse words it is declared in l. prima C. de iurisd omn. iudic But besides this firme and solide foundation we may adde another very preualent and vniuersall which is that from time out of minde much before 200. yeeres last past when any plea hath beene of goods possessed by the Laietie giue them the name of emphyteoticall censuall feudatorie lease for long time or what other title soeuer the Ecclesiasticall Iudge in this State hath neuer denounced iudgement therein but alwaies and without contradiction the hearing and iurisdiction thereof hath belonged to the Secular So that by this wee doe not onely prooue that the controuersies betweene the Monks and the Doctor was iuridically determined by the Senate but further that a power is proper to them to make statutes which may dispose and order of those goods aboue named possessed by the Laietie wherein the Church hath directly freehold for vnto them it hath and doth appertaine to determine those controuersies which haue or doe arise about them and aboue we haue made cleere demonstration how it standeth with the same power to make statutes and denounce iudgements There remaine registers in all the
needs haue licence to obey him and licence being required whereas without non licet shall not then that which God commands be lawfull Nature in all her finall drifts giueth also such faculties and powers as are necessarie for the atteining to the same and shall God set downe an end and commandement which can not be executed without the fauour of men This is too great an inconuenience But let vs returne to the matter of the same law the which as it is in it selfe no new inuention so the most famous Ciuilians haue discussed of the same and defended it for iust and amongst others there is Baldus the Archdeacon the Abbat Signarolus Alexander Bal. c. qua in ecclesiarum c. ecclesia S. Mariae de constit Arch. c. R mana de app 16. Abb. l. 1. cons 63. Signorolus cons 21. Alex. cons 93. Barbat l. 2. cons 14. Crotus l. 1. cons 5. Tiraq de retract consang §. 1. gl 13. Gail l. 2. cons 32. Capit. de fac pol. l. 3. to 1. Barbaccius Crotus Tiraquellus Gaelius Renatus and Copinus by reading of whom euery one may plainly discouer whether this were any sufficient cause against which to proceed with censures and the principallest points in such a sentence not hauing beene duly obserued Whereupon it will not be altogether vnprofitable to deliuer some thing also about the order obserued by the Pope herein to the end that we may plainly see how many nullities passed in the management of such a businesse of such a iudgment or censure I will not say because wanting all substance thereof it can not so iustly be tearmed The Diuines say That an vniust sentence may well appeare externally to be a iudgment but in it selfe truly it is not so as also That euery vniust iudgment is of it selfe nothing and That an indirect iudgment is no more a iudgment than a dead man is a man But what we see in it a plaine formall defect and this of that substance as it makes it altogether immomentall First it was declared without any citation preceding That the old and new lawes of not alienating of goods and building of Churches without licence are against the authoritie of the Apostolike See and of Ecclesiasticall liberty and that the Law-makers themselues haue herein incurred censure and yet it is an apparent point in all the Ciuilians That citations are de iure naturali and also very requisit in all causes declaratory The which may well serue for a nullitie of the aboue-mentioned Breue and of whatsoeuer hath beene prosecuted in vertue of the same But that so many godly men alreadie dead in Christ and which haue alwayes communicated with the Popes of their times should be denounced excommunicate what is it els but to condemne so many of the Popes predecessors and to auerre that they discharged not so well their care of soules as they ought to haue done And I assure you amongst them there were diuers Popes of singular vertue and pietie The Pope yeelds a reason why he determined to proceed against the Common-wealth saying Cum praetermissi officij nostri causae Ecclesiae desertae à nobis rationem extremo Iudicij die exigi à Deo nullo modo velimus neque enim existimetis nos qui alioquin pacis quietis publicae cupidissimi sumus omnesque nostros cogitatus eò intendimus vt soli Deo interuenientes rem Christianam quantum possumus pacatè gubernemus quique omnium animos praesertim maximorum Principum nobiscum ea in re consentientes esse optamus si aliquando Sedis Apostolicae authoritas laedatur si Ecclesiastca libertas immunitas impetatur si Canonum decreta negligantur Ecclesiarum iura Ecclesiasticarum personarum priuilegia violentur quae muneris nostri summa est id aliquo modo dissimulaturos aut officio nostro defuturos hac verò in re id vobis persuasum esse volumus nos nullis humanis rationibus moueri aut quiddam praeter Dei gloriam quaerere aliudque habere propositum nisi perfectam quoad eius fieri possit Apostolici regiminis functionem And surely his H. not without iust cause may well feare a iudgement diuine hauing offended in his Pastorall office because God threatneth by Ieremias Veh Pastoribus qui dispergunt dilacerant gregem pascuae meae dicit Dominus Ideo haec dicit Dominus Deus Israel ad pastores qui pascunt populum meum dispersistis gregem meum eiecistis eos non visitastis eos Ecce ego visitabo super vos malitiam studiorum vestrorum ait Dominus And to the people he promiseth Dabo vobis Pastores iuxta cor meum pascent vos scientia doctrina For this is most certeine that the very summe of all Pastoral charge consisteth in the preaching of the Gospell in holy admonitions and instruction to Christian conuersation in the administration of the Sacraments a care ouer the poore and in the punishment of such offences as absolutely exclude vs out of the Kingdome of God these being things which our Sauior Christ recommended ouer vnto S. Peter committing them to his charge the which things only were practised by him as also by the holy Martyrs his successots and the holy Confessors also which succeeded them from time to time but not in such a maner as the darknesse succeeds the light In the sacred Scriptures wee learne that the glorie of God consisteth in the propagation of the Gospell and in good Christian life 2. Cor. 4. and in briefe as S. Paul speaks in the mortification of the externall man in the life of the internall and in the exercise of charitable deeds For if the glorie of God should lie in the abundance of Temporall goods we might haue iust cause to be afrayd of our selues seeing Christ hath promised to his nothing but pouertie Iohn 15. persecutions discommodities and to conclude as the same vulgar know very well troubles and want are the true trials of the ftiends of God Math. 8. and no man sayth the Gospell followes Christ but after he hath taken vpon his shoulders his owne crosse That which by some one hath beene dispersed in diuers places and to many persons is very different from the doctrine of S. Paul which is 1. Cor. 15. That it can not be seene wherein this city can be so truly commended for religion for though almes and charitable deeds towards the poore abound in the same as also ornaments of the Church and worship diuine yet for all this the very substance of a Christian consisteth in fauouring the Ecclesiasticall iurisdiction and in Venice we see the contrarie to this 1. Cor. 15. The saying of S. Paul is Si tradidero corpus meum ita vt ardeam charitatem autem non habuero nihil sum We reade in the holy Euangelists that our Sauiour in the day of iudgment will demand an account of the wicked for not hauing vsed the works of
as that Empire lasted But indeed in the West the French Emperours and Saxons with the Kings of Italie they haue diuersly obserued herein sometimes committing of iudgements to the Clergie and otherwhiles sentencing not only Priests and Bishops but euen the Popes themselues one while referring them in part to be iudged by the Spiritualtie and in part by the Magistrates according as the alteration of times permitted at one time the Popes authoritie preuailing and at another the Emperours And at last Fredericke the second about 1220 made an authenticall insertion into Iustinianus his Codex That no man might bring any ciuill or criminall Clergy man before any Secular Iudge and whosoeuer readeth the titles Episcopis Auth. C. de episc cler l. statuimus Clericis de Episcopali audientia vel de Episcopali iudicio in Theodosius and Iustinianus his Codex he may finde all these lawes and be fully informed how Ecclesiasticall exemption hath beene a benignitie and fauour vouchsafed by the Emperours as also they shall be certified that though they granted exemption to the Clergie from the power of their Magistrates yet did they neuer except any from their owne highest and supreame power The power of punishing whosoeuer offendeth against the lawes is so annexed to all principallitie as it is indiuiduall from the same and to say that a Prince hath one in his State not subiect to him in causes temporall or any other concerning publike good it implieth so much as if he were not a Prince A naturall bodie could not comport that there should be in it any one member not allotted to the seruice of the whole and entire much lesse can a ciuill bodie endure that there should be a man in the middest of it that did acknowledge any other but the Prince in humane and temporall things The Pope himselfe in things spirituall exempts whom he lists from Bishops and Archbishops but from himselfe he can priuiledge none without desisting to be Pope The Venetian Common-wealth being freely begun and borne as it were about the yeere 420 notwithstanding as it vsually falles out in all great States not so expatiated in her beginning into so large and spacious dominion yet hath it receiued from God no lesse than other great Princes in their mightie Empires authoritie and power ouer any person liuing within her dominions and the same Common-wealth hath suffered the Clergie to enioy the same priuiledge from Magistrates as they were granted from time to time in the townes and cities of the Empire being contented to punish in them those exorbitances which being vile and enormious might be a disturbance to publike peace and tranquillitie and there remaine Records of Ecclesiasticks punished for all sorts of offences and sometimes for such as would now be counted but slight but yet in respect of some particular circumstance deseruing worthily to be punished by the Common-wealth And though the Popes of Rome since the yeere 1160 C. at si clerici de iudi C. clerici eodem C. cum non ab homine eod C. qualiter quando eod haue made diuers decrees for the priuiledge of Clergie men yet haue these beene receiued so absolutely in no place by any Prince neither beene able to effect but that offences of high treason haue beene alwayes subiect to Secular iudgement Thorowout all Italie they punish Ecclesiasticall persons without any warning which goe not in their habits notwhithstanding any exemptions or decrees Pontificall In Spaine they do the like vpon the wearing of armes and diuers other offences In France they distinguish betweene common and priuiledged offences and only the former are referred to the Clergie and the latter to the Secular Iudge And so in like maner this Common-wealth hath diuided offences into those grieuous and others light and little importing those of no moment are put ouer to the Church and those grieuous committed to the Magistrates And thus haue they alwayes proceeded in executing the iustice and libertie of their iurisdiction I will not affirme that this is only a custome which being contrarie to a law hath in tract of time worne out the vigor of the same law it selfe for we doubt not but that custome must not preuaile against the law of God and of Nature though it had continued for many thousand yeeres and we will readily confesse thus much That if God himselfe had euer excepted persons Ecclesiasticall the act of any Prince whatsoeuer decreed to the contrarie would be but an vsurpation and offence against God And further to the former we will annex this also by their fauours which say That their priuiledge growes de iure diuino That if it were so the Pope could haue no power to bring them vnder because Seculars should not then be capable to put in practise that by the Popes dispensation which God had prohibited God hath forbidden Secular men to say Masse to confesse and such like the Pope can not by any of his dispensations beare them out herein And if they tell me that this is ius diuinum indispensable but the Popes is dispensable not to argue or labour to shew the contradiction which is in saying ius diuinum and yet dispensable by humane authoritie Innoc. c. cum Apostolica de sim de priuil c. quod quibusdam de verb. signif c. in bis c. super quibusdam it may suffice to answer them that all the meanes which may be obtained by a Dispensation from the Pope may also be acquired by a custome which may grow and propagate contrarie to a law and if we should suppose the execution of Clearks to haue beene first ordained by law and also executed and that afterwards through immemorable vse and custome the contrary were prescribed I say it might lawfully be practised and put in vse But in this our case the vse and custome of the Common-wealth preceedeth any law which priuiledgeth ecclesiastical persons from Secular triall in enormious criminall causes and no decree whatsoeuer which the Church hath made can preiudice them a whit To which may be added the secret approbation heereof in all the Popes who seeing and knowing thus much if they had not iudged it conuenient they would haue reprehended it and moreouer the expresse approbations themselues of Sixtus the Fourth Innocent the Eight Alexander the Sixt and Paulus the Third whose Breues are reserued in the secret rolles of Common-wealth doe truely maintaine what she hath iustly constituted The which Innocentius euidently declareth in his Breue directed to the Patriarke of Venice deliuered on the last of October 1487 in which intimating with what good reason the Common-wealth did sentence Clergie men not onely in those most horrible but also in all other offences that were anie waies odious and vile he vseth these words Nos attendentes priuilegia ad bene viuendum dari non ad delinquendum illaque praesidio bonis contra improbos esse debere non autem malis ad nocendum facultatem
another nor repute it such a sinne to say that he ought also to amend his owne errors committed for not only religious and godly Popes but those also that were lead most of all by humane meanes and policie haue confessed that they might erre and offered themselues to reclamation Innocent the Fourth entreating of a controuersie betwixt him and the Emperour Fredericke the Second vseth these words Si Ecclesia cùm in aliquo contra debitum laeserat quod non credebant parata erat corrigere ac in statum debitum reformare et si diceret ipse quod in nullo contra iustitiam laeserat Ecclesiam vel quod nos eum contra iustitiam laesissemus parati eramus vocare Reges Praelatos Principes tam Ecclesiasticos quà m seculares ad aliquem tutum locum vbi per se vel per solemnes nuncios conuenirent eratque parata Ecclesia de consilio concilij sibi satisfacere si eum laesisset in aliquo ac reuocare sententiam si quam contra ipsum iniustè tulisset c. A sentence therefore of Excommunication hauing beene thundred out against the Duke and Senate and all their dominions interdicted because they will not suffer the libertie of the Common-wealth to be defrauded because they giue not consent for the cooping vp of the foundations whereon it is built because they doe not depriue her of the power granted by God in the administration of the Common-wealth so necessarie for to mainteine the tranquillitie and peace of her dominions because they defend the liues honour and goods of those people committed to their gouernment and to conclude because they haue euer and now do that which they are commanded by his diuine Maiestie And though this Excommunication was denounced without vnderstanding the cause without citation or obseruation of those essentiall tearmes proper to iudgement and ordeined by God in the law of Nature with an affection farre different from that which his diuine Maiesty commandeth without due aduice and flat against the doctrine of the holy Fathers sacred Diuines and the Pontificiall constitutions themselues yet remaines it to be considered vpon for all the iniustice thereof is so cleere and the nullitie perspicuous and plaine what the princes dutie in this case is and how he ought to beare himselfe herein before God and his holy Church At the first sight somebody may aduise peraduenture that it were good to follow herein the counsell of S. Gregorie Sententia Pastoris siue iusta siue iniusta timenda and so to commend his cause vnto God with assurance that patiently to support vniust censures will turne to his great merit before the Maiestie of God An excellent course and counsell for an innocent which could not shew the equitie of his owne cause but for a Prince that hath so cleere and manifest reason on his side a more pernicious way cannot be taken either for himselfe his State or the seruice of God which must be respected aboue all other things For a Prince is more bound then a priuate man to feare God to be zealous of his holy faith to reuerence Prelats that he discharge Christ his place but so he is more bound to auoid hypocrisie and superstition to preserue his dignitie to maintaine his State in the exercise of Religion to take heed lest that do not happen to his people which sometimes fell out to the Iewes through Moses long absence who thinking that in him they were depriued of the true God they made them one of gold a thing which if it were well considered the world would not be at that passe which now it is That saying is not so generally true sententia Pastoris siue iusta 11. q. 1. c. sententia siue iniusta timenda as some Doctors interpret it who haue introduced and would maintaine in the Church of God a power which in name should bee called Ecclesiasticall but in deed is Temporall There is another Canon made by Pope Gelasius he that went before Gregory and no lesse famous in doctrine and sanctitie then himselfe where he saith 11. q. 1. c. cui illata Si iniusta est sententia tanto curare eam non debet quanto apud Deum eius ecclesiam neminem grauare debet iniqua sententia Ita ergo ea se non absolui desideret qua si nullatenus perspicit obligatum These two holy Fathers are not so opposite as the words may seeme to import But Theologicall doctrine will verie well reconcile this apparent contradiction There are some vniust censures because they are denounced with a peruerse minde and intention although it were vpon a iust and lawfull cause there is no doubt but all men will yeeld that these are to be feared and that before God they oblige vs as if they were iust although the Magistrate in his wicked intention offendeth his diuine Maiestie and of this it may be vnderstood that sententia Pastoris siue iusta siue iniusta timenda est Some are in trueth grounded vpon an vniust cause though in apparence iust by reason that in things humane the truth is oftentimes so concealed as it is not possible to discouer it so that an innocent sometimes may be cōdemned without any fault in the Iudge This kind of sentence obligeth vs not towards God neither ought it to be feared before his diuine Maiestie or in conscience although he condemned be bound to make a shew of feare not to scandalize his neighbour who esteemeth that sentence good and to liue towards God as his innocencie requireth before the world that thinks him culpable if he cānot manifest the truth to liue in patience so to commend his cause vnto God But if the sentence be vniust denounced without a lawfull cause neither in trueth nor in apparence wee must not onely not feare it but with all our power we are bound to oppose our selues thereunto This doctrine is established in eleuen Canons in the Decretorie Cáp. qui iustus c. cui illata cap. secundum Catholicam c. coepisti cap. remerariè cap. quod obesse cap. quò c. illud planè c. non debet 11. q. 3. cap. manet 24. q. 1. c. si quis 24. q. 3. and it is so receiued amongst all Diuines and Canonists that no one of them differs from another as also they agree in this point that none can be excommunicate except it be for mortall sinne the which must be prosecuted also after he hath been first admonished by the Church Hee that will but read all the foresaid Canons may be fully instructed that he need no whit to doubt but that vniust censures doe no waies oblige or offend and that they are not to be esteemed And so much the rather he may vnderstand this trueth if he reade but the authors in the fountaines themselues out of whom these Canons are taken for the words both before and after will make the matter more manifest The sentence vniust in trueth but yet iust in