But because what I have formerly said touching the uniting of the Ecclesiasticall and Temporall Courts may seem strange to many I desire not to bee mistaken as if I perswaded any innovation or change of setled lawes and Courts of Iustice Which would be a thing of dangerous consequence that no wise man will advise but leave all to the wisdome of superiours to whom properly it belongs Only I will adde a few lines touching the auncient forme and manner of government in the Empire after that the Emperours became Christians from whom 't is likely the example was taken both among us and in other kingdomes XXV Touching the division of the Courts temporall from the spirituall though Will: the Conquerour began the separation with us in England yet there was the like done long before even by Constantine the great the first Christian Emperour who first gave leave to the Christian Bishops to meet in Councells and to make Canons to governe the Church Canones generalium Conciliorum ut Isidorus ait lib. 6. Etym. cap. 16. à temporibus Constantini coeperunt Inpraecedentibus namque annis persecutione fervente docendarum plebium minimè dabatur facult as Inde Christianit as in diversas haereses scissaest quia non er at licentia Episcopis in unū conveniendi nisi tempore supradicti Imperatoris Although ever since the Apostles held their first Councell in Ierusalem Act. 15. where they made certaine Canons for the pacification of the Church of Antioch there were also some Provinciall Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the Churches did require As may bee seene in the first Tome of the Councells before the great Nicene Councell was assembled by Constantine Who being the first Christian Emperour did greatly labour to setle and advance the dignity of Episcopall government And because he knew well that superiority in the Church without power and jurisdiction was to litle purpose Therefore the good Emperour in his Christian zeale enacted Et si praecipuum Pontificis seu Episcopi munus est doctrinâ verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in officio retinere possunt superiorit as in quasunt Ecclesiastici absque imperio jurisdictione non sat is habet nervorum authoritatis denique quoniam Ecclesia mater cultrix est Iustitie Ideo Episcopis peculiaris quaedam Iurisdictio Ecclesiasticae civili dignior in personas causas Ecclesiasticas legibus Imp est attributa c. ut jus dicant clericis c. And least the Emperour in his Constitution in these words ut jus dicant clericis should seeme to keep short and restraine the Bishops in their Audience or Consistories to Clergy-men only there followes a praterea in the same title in the Code De Episc. audient not long after this praeterea saith the Emperour there Ius dicunt laicis XXVI And as before the age of Constantine for want of power in the Church and the Assistance of the Christian Magistrate the Bishops could not restrain nor suppresse the many heresies schismes that did arise in those first ages most of which heresies were such as were fit to be beat downe 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 Iudges of that time touching cognisance of some causes Iustinian the Emperour made a law like unto that circumspectè agatis of our King Edward 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novell is thus Si delictum sit Ecclesiasticum egens castigatione vel mulct â Ecclesiasticâ Deo amabiles Episcopi hoc discernant nihil communicantibus clarissimis provincia Iudicibus Neque enim volumus talia negotia scire omnino civiles Judices cum oporteat talia Ecclesiasticè examinari et emendari secundum sacras et divinas regulas quas etiam sequi nostrae non dedignantur leges XXVII And further for the greatnesse of the Bishops authority it will appeare fully if we look upon the lawes as they lye concatenatae in the same title Where it is said of the Bishops Cum sint ordinarij Iudices and againe similes Praefectis Praetorio and further Ordinariè quoque procedunt The linked Texts in that title of the Code as they stand cited doe fully shew the greatnesse of the Bishops Courts 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 supream Iudges in the whole Empire there being but three in that spatious Empire One in Asia Praefectus Praetorio Orientis Another in Europe Praefectus Praetorio Illyrici The third in Africa Praefectus Praetorio legionibus et militiae Africanae These civill Magistrates were respectively Iudges 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 same Iudges in the Church as the Praefecti Praetorio were in the Empire before it appeares hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their Vicar-generalls whom now we call Chancellours as a learned Civilian observeth who are no upstarts in the world rising out of the Bishops sloath as one though otherwise eloquent and learned mis-called them but had their Originall from the Law it selfe Touching whom I will here say something out of the learned Civilians because commonly their place and Originall is much mistaken by the ignorantly zealous people who doe now abound in the world and thinke nothing lawfull in government unlesse there be expresse text of scripture for it as if no calling government or subordination of Officers in the Church were lawfull but what is expressely and fully set downe in the scriptures and no power or authority left in the hands of Christian Kings and Magistrates to appoint Iudges and Officers for Church discipline as well as for civill Iudicature XXVIII But to returne as the Praefecti Praetorio quia illustres erant et antestabant caeteris dignitatibus ideo habebant Vicarios suos in civilibus causis audiendis et terminandis So were the Bishops then and so are they now Illustres Iudices et antestabant et antestant caeteris dignitatibus in Ecclesia For the Law paralells them in the Church with the chiefe Iudges in the Empire as well in this as in the rest of the parts of their Honour wherewith the Emperour had honoured them and the Law honours them at this day Iustinien's Code hath sundry lawes some of his
shall bee given to the Church and Bishops forseverall offences committed for then they had a great part in all fines and mulcts together with the King III. Further for point of honour and dignity it appeares by the lawes of King AEthelstan that every Arch-Bishop was equall to a Duke of a Province Every Bishop to an Earle and so esteemed in their valuations Vid. LL. AEthelst Regis apud Lambardum pag. 71. Concil. Britan. pag. 405. cap. 13. de weris seu wergildis 1. capitum aestimationibus The title of Baron was not then knowne or used among the Saxons but they called the Nobility Thanes Vid. LL. Inae pag. 187. 9. and the Bishop was equall or rather superiour tothe Thanus Major And the Priest to the Thanus Minor The Bishop and Earle are valued at eight thousand thrymses Messetheines and Woruldtheines id est presbyteri secularis Thani duo millia thrimsa Missae presbyteri secularis Thani jusjurandum in Anglorum lege reputatur aeque sacrum and sacerdos Thani rectitudine dignus est The Priest was then accounted equall to a Knight or Lord of the towne and was commonly stiled by the name of Sr as a Knight was though now it be derided and out of use Out of these lawes and some others doth the learned Antiquary who is so well versed in the antiquities and monuments of our lawes and Kingdome fully set downe the ancient dignity and order of the Clergy Magno sane in honore fuit universus clerus cùm apud populum Proceres tùm apud ipsos Reges Anglo saxonicos nec precariâ hoc quidem concessione sed ipsis confirmatum legibus Sacerdos ad altare celebrans minori Thano 1. Villa Domino atque militi aequiparabatur in censu capitis pariter aestimatus pariterque aliàs honorandus quia Thani rectitudine dignus est inquit lex Abbas five coenobiarcha inter Thanos maiores quos Barones Regis appellârunt posteri primicerius fuit Episcopus similiter inter comites ipsos maiores qui integro fruebantur comitatu Iuribusque comitivis Archiepiscopus Duci Satrapa amplissime provinciae pluribus gaudenti comitatibus praficiebatur Vt caeteriomnes Ecclesiastici comparibus suis omnibus secularibus Amplectebantur siquidem Reges universum clerum laetâ fronte et ex eo semper sibi legebant primos à conciliis primos adofficia Reip obeunda quippe sub his seculis apud ipsos solùm erat literarum clavis et scientiae dum militiae prorsus indulgerent Laici factumque est interea ut os sacerdotis oraculum esset plebis os Episcopi oraculum Regis et Reipub primi igitur sedebant in omnibus Regni comitijs et tribunalibus Episcopi In regali quidem Palatio cum Regni Magnatibus in comitatu unà cum comite et Iustitiario comitatûs in Turno vicecomitis cum vicecomite in Hundredo cum Demino Hundredi sic ut in promovenda iustitia usquequaque gladius gladium adjuvaret Et nihil inconsulto sacerdote qui velut saburra in navi fuit ageretur Mutavit priscam hanc consuetudinem Gulielmus primus c. IV. After the Conquest William the first divided the Ecclesiasticall Courts from the secular not with a purpose to diminish the Ecclesiastieall authority Imò Iureiurando confirmavit leges sancta matris Ecclesiae quoniam per eam Rex et Regnum solidum subsistendi habent fundamentum Yet the Bishops and Clergy doe not now expect or desire to enjoy their ancient splendour amplitude and dignityes seeing the greatnesse of their Revenue which should uphold the dignity is long since taken away so that well might Bishop Latimer in his Sermon before King Edward say We of the Clergy had too much but that is taken away and now we have too litle for there was no lesse in the whole taken from them then many hundred thousands sterling too incredible to be here briefly expressed I will only mention one for example the Arch. Bishoprick of York from which was taken 72 Manners and Lordships at one instant by one of the last statutes of Hen. 8. and the like happened to Canterbury London Lincolne and all the rest which methinkes should be enough to satisfy that menshould not goe about to strip them of those poore pittances that are left unto them being but small fragments in comparison of their ancient Patrimony which the liberality and piety of the Primitivetimes had conferred onthem when charity and piety was fervent and abounded with good works of all kinds in so much that they thought no honour or respect too much to be given to the Clergy especially to the Reverend Fathers and Bishops of the Prime order V. From what hath been said it is manifest that the Bishops were equall to the greatest persons and estates of the kingdome and had their votes and suffrages for making lawes and constitutions for the first 500. yeares before the Conquest Whereby it appeares that it is a very rash and ignorant assertion oftheexaminer That Bishops at first were but casually mounted to that height of extent andpower by William the Conquerour themoreto indeere and oblige them And that it is only of grace that Bishops werefirst allowed place in Parliament And that they crept in by favour to serve aConquerours turne and can derive no higher for sitting as now they doe inthehouse of Peeres then an Act of Parliament if so high Whereas it is manifest by all the lawes of the Saxon Kings both in the edition of Lambard and of the English Councells that the Bishops were the principall men in all ages for ordayning of lawes and constitutions in all the great Assemblies of the kingdome then in use And when matters in question were only Ecclesiasticall concerning the Church and Religion the Clergy sate by themselves but when there was any thing to bee given and confirmed to the Church then the Kings and Nobles did afford their presence and assistance as appeares by divers Councells Vid. Concil. Cloueshoviae pag. 230. VI As for the title of Baron in that sense as it is now understood it came among us since the Conquest as the learned Glossary sheweth pag. 81. Ad Anglos pervenisse videtur vocabulum Baro vel cum ipsis Normannis vel cum Edovardus confessor auras moresque imbibisset Normanicos Huntingtoniensis aevi sui vocabulum usurpans Histor lib. 5. Adolwaldum qui occisus est An Dn 903. Baronem Regis Edwardi senioris vocat sed Author antiquior Florentius Wigorniensis eundem ministrum Regis appellat quo etiam vocabulo scriptores ipsi Saxonici passim usi sunt So in the Saxon Councells and charters divers great men who were no lesse then Thanes doe stile and subscribethemselves Ministros Regis as in the charter of Edgar page 486. Ego Oswolde minister confirmavi Ego Elfwurde minister corroboravi And the like frequently occurre These
owne some of the Emperours before him even from the dayes of Constantine the great which shew that Bishops in their Episcopall Audience sate not without their Chancellours although their Chancellours sate often without the Bishops whose higher charge in Christs Church permitted not the Bishops presence in Court causes ordinarily And though not under the name and title of Chancellours nor alwayes Vicars Generalls Officials nor Commissaries yet they had other titles but the same offices Ecclesiastici or Episcoporum Ecdici as much as to say as Church-Lawyers or Bishops Lawyers professed Civilians and Canonists of that age the very selfe-same Officers and Office that the Bishops Vicar-generalls then were and now are Who together with the Bishops then made and doe now make but one and the same Tribunall and Consistory their Commissions they held from the Bishops but their Iurisdiction from the Law And the cause why the Imperiall power furnished the Bishops with these Officers was the multitude and variety of Ecclesiasticall causes more in that age then now the decisions whereof in their Consistories being left to the Bishops the Emperour doubted might have drawn them from prayer and divine exercises And a second reason was that the cause of the cognisance of their Courts weremore likely to have thereby a more speedy ready and Iudicious triall before Iudges of the same learning which require a whole man then before Iudges of another though an higher requiring as the Bishops pastorall office doth a whole man too And a third reason also may be added Because that clerkes suits and quarrells should not be divulged and spread abroad amongst the secular sort which trenched many times upon the whole profession especially in Capitall matters wherein Princes aunciently so much tendred the Clergy that if a Clerke had committed an offence worthy of death or open shame whereby he became perpetually infamous hee was not first executed or put to open shame before hee was degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerke but as a laymalefactour for the Honour and dignity of Priesthood It were to be wished this order were retained still that Clerks should not passe immediatly 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 Iurisdiction of the Crowne But this and whatsoever else is said here I submit to the censure of superiours A DETERMINATION OF A Question made by the right Reverend IOHN DAVENANT late Bishop of SARUM QUAEST. 11th Civill Jurisdiction is by right granted to Ecclesiasticall PERSONS IT is by the warrant of Christ himselfe that the Church doth claime and execute a spirituall Iurisdiction 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 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 unskilfull in Ecclesiasticall affayres that will deny this Authority which indeed goes not beyond Excommunication to have been conferred on Church-men from the beginning by divine Institution But in this our Church Christian Princes have furthermore allowed the Clergy temporall authority by vertue whereof they inflict civill punishments on Heretiques Schismaticks and other despisers of the Church As also many sage and grave Divines are in divers places endowed with the publique power of Iustices of Peace Concerning this Iurisdiction let us enquire whether it may lawfully be granted to Church-men which that it may lawfully be done these following Reasons have induced me to believe It is first to be considered thatboth these Iurisdictions tend to the same end of promoting Iustice and bridling vice but with this difference that that power which is meerly spirituall makes use only of spirituall means whereas the weapons of civill authority be coactive and externall as Imprisonment Fines and corporall punishments Here therefore would I know why it should be esteemed a wicked and unlawfull act not suiting to the holy function of a Priest to correct Hereticks Schismaticks and other vile and notorious disturbers of the Christian Common-wealth's Peace as well with civill and bodily chastisements as those of the spirit where Power is given them so to doe To resist and pull downe vices by either way is a good and plausible action and of it 's selfe misbeseeming no Person though never so holy The blessed Angellsof Heaven deeme it a thing in no wise contrary to their sanctity in the name and command of God to smite the prophane with corporall Punishments Why then should the Angells of the Church thinke it not lawfull to adjudge the same delinquents to any deserved punishments when by the decree of their Soveraign Gods Vice-gerent here on earth it is so determined For the Execution of civill Authority is not of it's selfe repugnant to any Person how holy soever nor disagreeing to the office of Priesthood Againe the high and absolute Power of the Giver perswades me that Church-men doe by good right exercise this Iurisdiction For the King being by God's appointment the Fountaine of all civill Authority may without offence derive some rivelets thereof to what Persons he shall thinke fit whether Lay or Ecclesiasticall I said but some rivelets because though no Temporall office by Gods lawes are forbidden the Clergy wisdome and equity permit not Kings so farre to burthen them with state affaires as wholy to divert them from their spirituall Function This Power therefore is so to be entrusted to them as it may be an Ornament or Furtherance to the Church government no hinderance or obstacle thereunto But it is not for every vulgar judgment or envious Peece to determine how farre this Iurisdiction is to be granted to the Clergy so that it may helpe and not trouble them in their Ministery But what Aristotle the life of Philosophers said concerning the Meane in vertues that it is so to bee order'd {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} as the wise man shall think fit May be applyed to this Temporall Iurisdiction that it is so farre to bee communicated to Church-men as a Iudicious and wise Prince shall thinke convenient Seeing then it hath pleased Christian Kings to arme the Clergy with some civill Iurisdiction and ordaine that to the greater improvement of Christianity and casting downe of wickednesse they should exercise both Ecclesiasticall and civill Iurisdiction it is most apparantly lawfull and pious and plainely necessary by the ayde of both Iurisdictions as with a two-edged sword to preserve piety and the Peace of the Church and cut of it 's Opposers 3ly Because to many it seems unfitting the successours
of the Apostles should exercise an Authority which the Apostles themselves had nothing to doe with Let us observe the difference of Times and thence gather that this civill Iurisdiction is as expedient and necessary to the Divines of our Time as it was altogether unnecessary and unprofitable to the Apostles Civill Iurisdiction is by the chiefe Magistrate to be conferred on those that are subordinate and according to his lawes to bee administred As long therefore as the Rulers of the earth waged warre against the Truth of the Gospell neither could they assigne nor the Apostles without scandall to Christ and the downefall of Religion have received any Temporall Power from their hands But since Kings and their lawes began to subject themselves to Christ civill Authority by them given to the Ministers of Christ might-have been a great furtherance to the advancement of the Gospell and more happy government of the Church Furthermore the Apostles and Fathers of the primitive Church were from heaven endowed with an extraordinary and miraculous power which did more availe to the confirmation of Christians in Faith and Obedience then any civill Authority But now the government of the Church is in the hands of Ordinary Ministers who being disarmed of that divine and miraculous power are conveniently guarded with this Temporall and Ordinary Iurisdiction Lastly when the Christian Church was in her Infancy Piety was more deepely rooted in the breasts of the Disciples and if they would have resisted the discipline of the Church their rebellious minds were soone quelled by the cruelty of persecution and hourely imminent danger of violent death But now the Christian world wholly possessed and carried away with Pride and Luxury hath so cleane layd aside all respects of Piety and Modesty that all the spirituall power of the Clergy and Church-discipline if not seconded by civill Iurisdiction breeds rather scorne and contempt then amendment in the malitious remorse of this present age Thinke then what rash and incompetent Iudges they are who from the Apostles and their dayes conclude temporall Authority not requisite to our Ordinary Ministers A fourth Argument may be drawne from God's owne Institution and the most ancient practice of the Church God himselfe under the law did annect civill lurisdiction to the office of Priesthood it is therfore no strangething nor against the divine Law that a Church-man should beare sway in temporall affayres Heli Samuel the Macchabee's together with all the high Priests in the old Testament did exercise this kind of Authority but why it continued not so for some hundred yeares after the Gospell is made evident by reasons above alleadged But since Constantine the Great submitted his Imperiall Scepter to Christ you shall in all Ages finde the godly Bishops and Fathers of the Church administring civill Iurisdiction by Religious Emperours to them imparted which if time would serve might be clearly testified out of Ecclesiasticall Histories and Councells and out of the Emperour 's owne lawes but these are so sufficiently knowne to the learned that the citation thereof would prove an unnecessary Trouble Lastly let us out of our adversaries owne grants and confessions prove what they themselves deny They grant the Clergy a Iurisdiction whereby they can cite before their Courts Hereticks Drunkards Adulterers and such like infamous persons admitaccusations against them heare and examine witnesses and give sentence of Excommunication on those that are lawfully convicted If by vertue of spirituall Iurisdiction from Christ received they can doe these things why shall they not by the accession of secular Iurisdiction by the King conferred imprison the same Malefactours or by such like civill punishments bridle their loose incontinencies This Act of Correction is no lesse warrantable in it's owne nature then that of Excommunication both being put in execution by just and legitimate Authority neither doe corporall punishments lesse conduce to the Reformation of delinquents and the Churches good then those meerly spirituall Therefore by the allowance of superiour Authority it is no lesse expedient that Clergy-men should inflict one kinde of chastisement rather then another In a word learned Mr Calvin doth grant that what controversies soever happened between Christians to avoyd strife and division they were wont to referre them to their Bishops by their judgement to be decided And St Augustine tells us that he dayly spent some time in secular affayres either by his sentence determining and setling them or cutting them off by his interposition Furthermore he records that St Paul employed Church-men in such troublesome matters If private Christians doe lawfully commit their civill controversies to the arbitrement of Bishops surely Christian Kings may to the same Bishops lawfully commit the Iudgement of the like causes if at the request of private men it bee not unlawfull for Church-men to intermeddle with secular businesses it cannot bee unlawfull to doe the same by the appointment of the King For as the matter stands hee doth no left interest himselfe in State-affayres who decides controversies as an Elect Arbitratour then he who decides the same as a Iudge ordained by the Prince Let us conclude that ambitiously so hunt after or with prejudice to the function of Priesthood to exercise civill jurisdiction is a proud and unlawfull act But to accept of civill Iurisdiction from the hand of a King and to administer the same to the better establishing of the Peace and Discipline of the Church is an act lawfull and praise-worthy most agreeable to the ancient practise of the Church and no wayes repugnant to the divine Scriptures FINIS Lambard p. 1. Concil. pag. 186. Lambard p. 57. Concil. p. 402. Concil. pag. 423. Concil. pag. 127. Bed lib. 2 cap. 5. Concil. pag. 206. LL. Ed. Confess cap. 31. Decanus Episcopi reliquas decem partes habeat LL. AEthelst pag. 406. Epist ad Regen Tum in vita tum in funere Concil. Haupam pag. 515. LL. Ed. Conf. cap. 3. LL. Guliel in prooem. 1. Sermon 37. H. 8. cap. 16. pag. 42. pag. 43. pag. 44. Page 309 Page 45. Vers. 3 4. Concil. 402. De Rom. Pontif. l. 1. cap. 5. Pag. 29. 1. Chron. 26. 29. Levit. 13. Num. 5. Deut. 21. 19. Deut. 21. Deut. 17. 8. 2. Chron. 19. Num. 11. 16. Antiquit. lib. 4. cap 8. 2. Sam. 6. 1. Chron. 13. 12. Selden not ad Eadmer p. 166. Proeem LL. Guil. 1. Glossar p. 315 Lambard p. 80. Con. p. 377. Concil p. 568. cap. 17. Anno 1164. Vid. Selden Dist. 15. can. 1. Quae fuit plenaria Conciliorum forma Novel 83. cap. 10. Mat. 18. 18. 1. Cor. 5. 4. 2. Thess 3. 14. Argum. 1. 2. Cor. 10. 4 5 6. Act. 12. 23. Apoc. 2. 1. Argum. 2. 1. Pet. 2. 13. 14. 2. Tim. 3. 4. Exh. 2. c. 6. 1. Tim. 2. 2. Rom. 13 3. 4. Argum. 3. Argum. 4. Argum. 5. Calvin Inft. 4. 10. 11. De opere Monach 29.