Statute Law as Lord Coke sheweth fully 2. Instit. pag. 693. upon the Statute of 18. Edw. 3. and 2 Edw. 6. and if the Presbyterians would not loose and foregoe Tythes they must maintain and uphold those statutes for better Laws for the true payment of Tythes and all Duties cannot be made But the Presbyterians account all humane laws but trash of humane Iuvention They will reform all according to the word of God in all points Their position is We must do nothing not so much as take up a rush or a straw without warrant from the Word of God As Cartwright affirmed and Hooker confuteth him accurately lib. 2. lib. 3. 8. 2. 3. c. He sheweth that in Scripture there is not a particular form of Church Government contained So the learned Francis Mason in his Sermon upon 1. Cor. 14. 40. Also the Learned Dr. Sanderson in the Preface to his 14. Sermons and in his 4. Sermon ad Clerum upon Rom 14. besides many others But though Hooker hath written with singular Wisdome Learning Godlinesse and Moderation yet the Puritans will not read him as Dr. Sanderson complaineth of them But what Bancroft did foresee and foretel so fully is now come to pass in our times to the great ruin and desolation of the Church King Iames in the conference at Hampton Court did something to pacifie the Puritans But in the conclusion he passed them over only with admonitions to be quiet and accepted their promise to be obedient for the time to come not to oppose the Bishops nor the Ecclesiastical Laws but to behave themselves as dutiful Subjects And the King with the Lords of his Council appointed Bancroft to write unto all the Bishops to deal moderately wiâ—h the Puritans which Letter is extant in print as full of moderation and gentle cautions as possibly could be expected But that mild proceeding of Bancroft and the Bishops and forbearing to bring them to obedience and submission by Ecclesiastical censures and other courses which might have been taken to put a final end to their wrangling humours gave the Puritans hope to find the like favour always in succeeding times as they did under Arch-bishop Abbot which Levity and forbearance occasioned the present troubles of these times in great part But the Puritans are an implacable generation who did only forbear till they had a further opportunity to promote their designs Which now they have in great part effected and verified the praediction of Bancroft and Hooker Who did foresee plainly their restless disposition and endlesse contentions not caring to set fire on the whole Kingdome as they have done these last 40. years in Germany Bohemia and France upon the same grounds and principles as our Puritans have done among us Being indeed secretly displeased because the Puritans were not preferred to the best offices and dignities in Church and Common-wealth which now they have invaded by open force and violence in most outragious manner especially the Puritan Ministers without any regard to the Laws of God or man thrusting themselves into the best preferments by way of Sequestration and then getting Acts and Orders to be continued in for their lives without any respect to the Title of the lawful patrons whose rights they set aside and suspend as well as the Incumbents most unjustly Whereas they are neither by desert for Learning nor education in the Universities capable of the best preferments they being only such as have been only poor Lecturers poor Vicars poor Schoolmasters and poor new lights such as are not qualified as the Statute requires to enjoy the best Livings of Value 13. Elizab. cap. 12. CHAP. X. The Division of the Courts in the Empire and the manner of proceeding in them by the Bishops and Ecclesiastical Lawyers under them NOw because what I have formerly said touching the uniting of the Ecclesiastical and Iemporal Courts may seem strange to many I desire not to be mistaken as if I perswaded any innovation or change of setled Laws and Courts of Justice Which would be a thing of dangerous consequence that no wise man would advise but leave all to the wisdome of Superiours to whom it properly belongeth Only I will add a few lines touching the ancient form and manner of Government in the Empire after that the Emperors became Christians from whom it is likely the example was taken both among us and in other Kingdomes Touching the division of the Courts Temporal from the Spiritual though William the Conquerour began the Separation with us in England yet there was the like done long before even by Constantine the great and first Christian Emperor who first gave leave to the Christian Bishops to meet in Councels and to make Canons to govern the Church Canones ut generalium Conciliorum ut Isidorus ait l. 6. Elym c. 16. a temporibus Constantini coeperant in praecedentibus namque annis persecutione fervente docendarum plebium minime dabatur facultas Inde Christianitas in diversas haereses scissa est quia non erat licentia Eiscopis in unam conveniendi nisi tempore supradicto Imperatoris Although ever since the Apostles held their first Council in Ierusalem Act. 15. where they made certain Canons for the pacification of the Church of Antioch there were also some provincial Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the times did require as may be seen in the first Tome of the Councels before the great Nicene Councel was assembled by Constantine who being the first Christian Emperor did greatly labour to settle and advance the dignity of Episcopal government And because he knew well that superiority in the Church without power and jurisdiction was to little purpose Therefore the good Emperor in his Christian Zeal Enacted Etsi Praecipuum Pontificis sen Episcopi munus est doctrina verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in efficio retineri possunt superioritas in qua sunt Ecclesiastici atsâ—abdue imperio jurisdictione non satis habet nervorum authoritatis denique quoniam Ecclesia mater â—ultrix est Iustitiae Ideo Epâ—scopis peculiaris quaedam jurisdictio Ecclesiastica Civili dignior in personas causas legibus Imper est attributa c. Ut jus dicant Clericis c. And lest the Emperor in his Constitution in these words Ut jus dicant Clericis should seem to keep short and restrain the Bishops in their Audience or Consistories to Clergy men onely there follows a praeterea in the same title in the Code De Episcop audient Not long after this praeterea saith the Emperor there juâ— dicant laicis And as before the age of Constantine for want of power in the Church and the assistance of a Christian magistrate the Bishops could not restrain nor suppresse the many haeresies and schismes that did
the Union of Courts in England continued till the time of William the Conquerour as the learned Antiquâ—ry Spelman sheweth in his Glossary in Cotes pag. 3. Munâ—s comitis judiciarium fuit vim injuriam prohibere latrocinia compescere pacem regiam non solum legum tramite sed armis etiam promovere jura regia vectigalia curare colligere fisco inferre Praesidebat autem foro comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut humanum dicâ—ret alter que alteri auxiliâ— esset consilio presertim Episcopus comiti 〈◊〉 in hunc illi animadvertere saepe licuit erranteâ—â— cohibere Idem igitur â—trique territorium jurisdictionis terminus Hereby it appears that the Bishop and Earl of the Counâ—y were joint governours but the Bishop was principal for he had power to restrain the Earl if he did do amisse the Bishop being learned but the Laity in those days altogether destitute of Learning and Knowledge So that it is certain that the Bishop and the Earl or Aldermen sate both together in the same Court together with their Assistants and Surrogates and so 〈◊〉 assist each other with Counsel and authority and in the forenoon they heard Church causes and in the Afternoon temporal business This manner did preserve amity between the Clergy and the Laity that they did not clash for jurisdiction by sending prohibitions Injunctions and cross orders as in our times which do occasion great vexation to the people and prolonging of Suits and doth multiply charges extreamly It is therefore certain that the Bishops and principal Clergy were always of great authority in our Kingdome especially for making of Laws and Constitutions of all kinds and executing of them which is manifest by all the Laws themselves of the Svxon Kings for about 500. years before the Conquest Wherein they first testifie that the Laws were made by the consent suffrage and approbation of the Bishops First Ethelbert the first Christian King of the Saxons made Laws which are entituled thus Haec sunt Decreta seu Iudicia quâ— Ethelbeâ—â—us Ren conslituâ— Tempore Augustini As Sir Henry Spelman hath recorded them in his Comments pag. 127. All the Laws then made are not recited by Spelman but they are extant in the old Book called Textus Roffensis Written by Ernulph a Bishop of Rochester Beda de his scribit lib. 2. cap. 5. Mortem sepulturam Ethelberti referens Inter â—aetera iniquit bona quae genti suae cansulendo conferebat etiam decreta illi Iudiciorum juxta exempla Romanorum cum Consilio sapientum constituit Quae conscripta Anglorum sermone hactenus habentur observantur ab ea In quibus primitus posuit qualiter id emendare deberet qui aliquid rerum Episcopi vel reliquorum ordinem auferret volens scilicet tuitionemâ—â—is quorum doctrinam successerat praestare Sequuntur multa ad vitae probitatem morum Correctionem pertinentia saith Spelman in his Notes Which Laws were casually omitted by my absence from the Presse at that instant but shall be added if ever a second edition be made But certainly Augustin was the principal Bishop that did make these Laws though other names are not put down but his only being the principal Yet in other Councils following divers Bishops are mentioned as in the Laws made by King Ina. Anno 693. Ego Ina Dei gratia West-Saxonum Rex exhortatione doctrina Cennedes patris mei Heddes Episcopi mei Erkenwaldes Episcopi mei omnium Aldermanorum meorum seniorum sapientum Regni mei Constitui c. So in the beginning of King Aethelstan Ego Adelstanus Rex Consilio Wulfelmi Archiepiscopi mei aliorum Episcoporum meorum mando praepositis meis omnibus Likewise in the lawes of King Edmund Edmundus Rex congregavit magnam Synodum Dei ordinis seculi apud London Civitatem in Sancto Paschae solennis â—ui interfuit Odo Wulstanus Archiepiscopi alii plures Episcopi c. The same appears by the Subscriptions to the laws made by the Bishops and principal Clergy and Abbots of their several times which are so frequent to be observed in all ancient Charters and laws in the first Tome of our English Councils that I will forbear many particulars only one for example sake being the Custome then to testifie their approbations not by voting but by subscribing their names to approve and grant the laws made in Parliament and not to refer all to a Register or Clerk to take notice of what is granted and by what persons present The Subscriptions to a Charter of King Edgar to The Monastery of Glasten Ego Edgar Rex totius Britanniae praefatam libertatem cum sigillo sanctae Crucis confirmavi Ego Elfgina ejusdem Regis Mater cum gaudio consensi Ego Edward clito Patris mei donum cum Triumpho sanctae crucis impressi Ego Kinedrius Rex Albaniae adquievi Ego Mascusius Archipirata confortavi Ego Dunstanus Dorobernensis Ecclesiae Archiepiscopus cum Trophaeo sanctae Crucis cum suffrâ—ganeis praesulibus Regis donum corroboravi Ego Oswald Eboracensis Ecclesiae primas consentioni subscripsi Ego Ethelnoldo Wintoniensis Ecclesiae Minister Glasten Monachus signum sanctae crucis impressi Ego Britchtelm Fontarensis Episcopns consentiens corroboravi Ego Ellslam Episcopus confirmavi Ego Oswald Episcopus adquievi Ego Elfnolde Episcopus concessi Ego Winsige Episcopus cum signo sanctae Crucis conclusi Ego Segegar abbas vexillum sanctae crucis impressi Ego Escui abbas confirmavi Ego Ordgar abbas corroboravi Ego Ethelgar abbas concessi Ego Kinword abas Concessi Ego Fideman abbas consolidavi Ego Elphets Abbas subscripsi Ego Adulf Herefordensis Ecclesiae Catascopus corroboravi Ego Elphene Dux Dominae meae sanctae Mariae Glasteniensis Ecclesiae libertatem omni devotione cum sigillo sanctae crucis confirmavi Ego Oslâ—ck dux consensi Ego Ethelwine dux hoc donum triumphale hagiae crucis propriae manus depictione impressi Ego Osnald minister confirmavi Ego Elfwurde minister corroboravi Ego Elthesie minister consensi Ego Elâ—kie minister consensi Thus first the King Queen and Prince do subscribe then the Bishops afterward the Abbots and lastly the Noble-men howsoever they were then called The Bishops in all other Christian Kingdomes as in the Empire of Germany France Spain Portugal Poland Hungary and all others as Denmark and Sweden since the Change of Religion there have place and power in all their Parliaments and publick Assembies The Bishops Electors of Germany Ments Triers and Colen have place and precedency of the Temporal Electors the Duke of Bavaria Saxony and Brandenburgh as our Bishops had place sitting on the right hand of the King in the House of Lords and the Temporal Lords on the left hand And also out of the House the Bishops had precedency of all Barons
and Piety was fervent and abounded with good works of all kinds insomuch 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 From what hath been said it is manifest that the Bishops were equal to the greatest persons and estates of the Kingdome and had their votes and suffrages for making laws and Constitutions for the first 500. years before the Conquest Whereby it appears that it is a very rash and ignorant assertion of the Examiner Dr. Burgesse That Bishops at first were but casually mounted to that height of extent and power by William the Conquerour the more to endear and oblige them And that it is onely of Grace that Bishops were first allowed place in Parliament And that they crept in by favour to serve a Conquerours turn and can derive no higher for sitting as now they do in the House of Peers then an Act of Parliament if so high Whereby it is manifest by all the Laws of the Saxon Kings both in the edition of Lambard and of the English Councels by Sir Henry Spelman that the Bishops were the principal men in all ages for ordaining of Laws and Consulâ—ations 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 be given and confirmed to the Church then the Kings and Nobles did afford their presence and assistance as appears by divers Councils Vide Concil Glocestriensiae pag. 230. CHAP. V. Concerning Barons and the Title thereof and how the Bishops became Barons being no addition of Honour to them but inforced upon them by the Conquerour and since continued to this day AS for the Title and Original of Barons and the old signification of the Word Selden in his Titles of Honor 2. part cap. 7. Especially Sir Henry Spelman in his learned Glossary upon the word Baro hath so accurately shewed divers particulars that I need not here repeat them But touching the Title and Name as it is now commonly used I will say something as it is now understood it came among us since the Conquest as the Glossary sheweth pag. 81. Ad Anglos pervenisse videtur vocabulum Baro vel cum ipsis Normanis vel cum Edwardus Confessor auras moresque imbibisset Normannicos Huntingtoniensis aevi sui vocabulum usurpans Histor. lib. 5. Adolwaldum qui occisus est An. Dom. 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 Councils and Charters divers great men who were no lesse then Thanes do style and subscribe themselves Ministros Regis as in the Charter of Edgar p. 486. Ego Oswald minister confirmavi Ego Elfwurde minister corroboravi And the like frequently occure These being the same in degree and substance as Barons are now whereof the Learned Glossary maketh three sorts Hodiernos itaque nostros Barones è triplici fonte triplices faciamus 1. Feodales seu praescriptitios qui a priscis feodalibus Baronibus oriundi suam hodie praescriptione tuentur dignitatem 2. Evocatos seu rescriptitios qui brevi Regio ad Parliamentum evocantur 3. Diplomaticos qui Regio Diplomate hoc fastigium ascendunt Feodalium originem inter eos collocavero quibus Willielmus senior Angliam totam dispertitus est de se tenendam quorumque nomina in Domesdei paginis recognovit Rescriptitios ab aevo Regum Iohannis Henrici tertii caput extulisse censeo Diplomaticos initium sumpsisse perhibent sub Richardo secundo qui anno Regni sui 8. 1. Christi 1387 Iohannem Beauchamp de Hall in Baronem de Kinderminster suo evexit diplomate Now the Bishops may be reckoned both as Feudal Barons in regard of their estates and Baronies annexed to their Bishopricks and also they are Evocati summoned by Writ as Barons and principal persons by the Kings to come unto Parliaments and also they are created by Patent which is presented to the Arch-bishop at their consecration But all the Feudal Barons were not summoned to Parliaments Quorum ingens erat multitudo quae plus minus 30000. nullo tecto convocari poterat William the Conquerour brought in Tenures inforcing all men of estates to hold by one Tenure or other and having made 30 thousand to hold by Barony yet he never called so many to a Parliament seeing no Houses could hold so many and as not all the Feudal Barons were called so not all the Abbots or Priors though they had great estates but a convenient number sometimes more and sometimes lesse as in 49. Hen. 3. Which is the first Parliament upon Record there were called to Parliament of the Clergy 102. besides five Deans saith Spelman Glossary pag. 4. Anno. 1. Edw. 2. there were 36. Abbots Anno. 4. Edw. 3. about 33. and all other times more or lesse Yet not so few as the Examiner relateth out of Sir Edward Cook pag. 33. who though he were a great Master of law yet in matters of Antiquity must yeild to the Author of the Glossary whom in private he would call his Tutor as well he might Cambden writing of the Degrees of States in England pag. 170. speaking of the Bishops by right and custome it appertained to them as to Peers of the Kingdome to be with the rest of the Peers personally present at all Parliaments whatsoever there to consult to handle to ordain decree and determine in regard of the Baronies which they hold of the King For William the first a thing which the Church-men of that time complained of but these in the age ensuing counted their greatest honour ordained Bishopricks and Abbeys which held Baronies in pure and perpetual almes and until that time were free from all secular service to be under Military or Knights Service enrolling every Bishoprick and Abbey at his will and pleasure and appointed how many Soldiers he would have every of them to find for him and his Successours in the time of Hostility and War Thus William the Conquerour being very rigorous imposed upon the Bishops and Abbots that held their estates by Barony great impositions to maintain arms horses and furniture for War enrolling them as he thought them able but it seems the lesser Abbeys that did not hold by that Tenure of Barony and Parish priests were not taxed as now they are But under the Saxons when the grievous imposition of Dangelt was imposed and raised from ten thousand pounds yearly to thirty thousand pounds and in the year 1012. to forty eight thousand pounds which was a great sum for that age when mony did not abound as it doth now yet the Church was then free De hoc Dangeldo libera quieta erat omnis Ecclesia quiâ— magis in Ecclesiae
Civitates Provincias judicia Ecclesiastica civilia exercuâ—runt and so Peter Martyr in 2. Reg. cap. 11. Neither will it hinder the study of Divinity or care of preaching the Gospel if some fit men be imployed sometimes in the Government of the publick as to be Justices of the peace for the well ordering of the publick and preservation of Peace and Justice will more advance the Gospel and abundantly countervail some intermission of preaching which cannot possibly be so continually attended but that there will be some hinderances not only by sicknesse and private businesses of ones Family and Estate but also by publick meetings Convocations Synods and such general assemblies Besides the Common-wealth and Church is a mixt Government and consisteth of all manner of persons of infinitely several conditions Trades and Courses of Life and seeing the Clergy are mingled among them and infinitely entangled especially of late days being made subject which they were not formerly to all temporal laws Suits Arrests Executions Imprisonments Impositions Taxes Charges and Subsidies it is but reasonable that the Clergy should have some of their own Tribe in place of Judicature and Office to see the inferiour Members defended and fair carriage shewed to them Aristotle saith lib. 3. Polit. cap. 1. Civis nulla re alia magis definitur quam participatione judicii ac Magistratus Whosoever are Citizens in a Kingdome meaning properly Citizens and of the better sort not Labourers Porters Scavengers they ought to have voice and suffrage and to be capable of Magistracy and Office if they be worthy and fit for it by any excellent parts of Learning Knowledge and Wisdome wherein the Clergy have some opportunity to excel others and often go beyond the ordinary sort of men that are not bred up in Learning Arts and Sciences Sir Francis Bacon observeth out of the ancient Roman Law that there belongs to every Subject certain common rights and priviledges which cannot be taken away from any of them 1. Ius Civitatis 2. Ius Connubii 3. Ius Suffragii 4. Ius Petitionis Ius Honorum These four ordinary rights and freedomes are by the Customes and original principles of humane Societies due to all Citizens of quality Such as ever the Clergy have been esteemed â—nd still ought to be if men will professe themselves to be true Christians indeed and to honour the Messengers and Ambassadours oâ— our Saviour Christ whom he hath appointed to instruct and govern his Church and people The Pope deprived his Clergy of the two former rights by accounting them separate and exempt from the Common Laws of all Kingdomes and forbidding marriage to them And now our zealous professors would deprive out Clergy of the two laâ—ter priviledges the right of voice and suffrage in all principal businesses and the right of Honour and Office whereof they would make them uncapable and render them base and equal only to the inferiour multitude and scum of the Common-people Lord Coke 2. Instit. cap. 2. pag. 3. Upon Magna Charta Concessimus Deo quod Ecclesia Anglicana libera sit habeat omnia sua jura integra libertates suas illaesas True it is that Ecclesiastical persons have more and greater Liberties then any other of the Kings Subjects wherein to set down all would take up a whole Volume of it self and to set no examples agreeth ill with the office of an expositor therefore some few examples shall be here expressed There he putteth down many particulars which are very considerable and I refer the Reader to him But in the end he concludeth that all the liberties of the Clergy are lost or not enjoyed But why should the Clergy be deprived of so many liberties rights and priviledges being so fully setled upon them by the fundamental Laws of the Land We may thank such unworthy fellows as to please the vulgar people will be content to see the Clergy stripped of all their rights and liberties from the first to the last as it happens in these troublesome times But the true reason is because that Dr. Burgesse and such as he is could not obtain the principal dignities and preferments of the Church that so they might with the preferments have had the benefit of the priviledges and liberties Ambition and Covetousnesse hath always been the bane of the Church Whereof there are many examples in all ages as in the beginning of the Jewish Churches Corah beingâ— Levite of the Cohathites which was the cheif Family of the Levites as is observed on Numb 3. 38. he took offence as S. Iarchis noteth on Numb 16. and envied at the preferment of Elizaphan the Son of Uzziel whom Moses had made Prince over the Sons of Cohath Numb 3. 30. When he was of the youngest Brother Uzziel and Korah himself was of Izkar elder then he See Numb 3. 29. 30. But by the Sequel it appeareth that he lift up himself not only against Elizaphan but against Moses and Aaron and sought the priesthood also pag. 10. as Ainsworth observeth on Numb 16. So in the Christian Church Arrius the infamous Heretick was displeased because he could not obtain the Bishoprick of Alexandria and thought himself as worthy as Alexander and being discontented at his loss of so rich a bishoprick raised that Heresie which plagued the Church 300. years So Aâ—rius offended because he could not obtain a Bishoprick took exception against the Dignity of Bishops As Epiphanius sheweth and many more such examples are obvious in the Ecclesiastical Histories And so at this instant of our Troubles the Presbyterian Divines were offended because they could not obtain the cheifest dignities of the Church Mr. Stephen Marshal a principal Presbyterian did once petition the King for a DeanÌ„ry and at another time for a Bishoprick Which because he could not obtain as the King told him at Holdenpy where he attended upon the Commissioners therefore he would overthrow all Doctor Twist was an earnest Suiter for the Deanry of Salisbury which because he could not obtain nor a Prebend in Windsor which he once desired but failed of it Mr. Hales of Eaton Colledge being preferred before him therefore he was angry and discontented that he must rest and sit down upon his living at Newberry Doctor Burgesse was one of the same shape he never had a fellowship or any like place of Continuance in any Colledge but left the University after he was Master of Arts yet he got two livings St. Magnus in London and Watford neer St. Albans and then endeavoured to be made the Kings Chaplain which once he obtained but was shortly put out by means of the Archbishop So that he being offended did only watch for a time when he might fish in troubled waters when the late troubles began he became the cheif Leader of the rascal rabble out of London to cry out for Justice against the Earl of Strafford and against the Bishops and at length he iâ—vaded the Deanty of Pauls being allowed a
Stipend of 400. l. yearly And since he hath invaded the House of the Bishop of Wells and much of the Lands But had he been made Dean of Pauls or Bishop of Bath and Wells by King Charles he would never have opposed the Bishops The like is known concerning Mr. Henry Burton The original of his discontent is well known He lost his place at Court which for a little time he enjoyed under Prince Charles and so losing his hopes of further preferment he was inraged with envy and revenge against the Bishops and all Church Government and at length degraded and punished according to his demerits Thus Ambition and Covetousnesse was the true motive of all the Presbyterian fury and rage against the Bishops and Ecclesiastical laws and Courts But to return to our former purpose and discourse why it is fit and reasonable that some principal men of the Clergy should be in power and some places of Judicature to preserve the inferiour Clergy from oppression and contempt whereunto they are now obâ—oxious Whereas if the Clergy might now enjoy those ancient priviledges which are mentioned in Scripture as Gen. 47. of King Pharaoh who in the time of Famine and great extremity spared the Priests Lands and allowed them their portion so that they sold not their Lands Then men might better talk of applying their studies and medling with no common or worldly businesse Artaxerxes the Persian King Ezra 7. 24. commanded that for all the Priests and Levites and Ministers of the House of God it should not be lawful to impose Toll Tribute or Custome upon them Whereas now the Clergy being made subject to the most sort of payments charges and impositions in a greater proportion commonly then other men it is but requisite that some principal men of the Clergy should have voyce and suffrage in making the Laws that are enacted for their Government and Taxations Besides the course of Laws and Government is now much altered from what it was in former times when Holy Fathers spake of wholly applying themselves to prayers and sacred studies and diligent preaching of the Gospel as if they were to do nothing else not so much as to provide bread and necessaries for their Families for then they lived most part single in Colledges and Monasteries and Societies under the Bishops where all necessary provisions were made by Stewards and Officers appointed for the purpose so that their cares in all those respects were lessened and abated much that they might apply their studies only and forsake all worldly businesse which now they cannot foregoe being secular and parochial Ministers married men and thereby charged with Children and Families and also made obnoxious to all Laws Suits and Impositions without any exemptions or priviledges So that it is but a Monastical and in part a Popish fancy to talk so much of applying their studies and only preaching in the Gospel for by many a writ and warrant from several Courts of justice and Constables they shall be hindred and commanded to attend secular and litigious proceedings and answer to all Bills of Complaint Declarations and vexations that shall hinder their preaching and studies more then a voluntary imployment at fit seasons in some publick office Further it is but a Popish opinion that Regimen Ecclesiasticum est distinctum a politico Which Bellarmine maintains taking it for granted on both sides only to advance the Papacy above Kings and Princes and to exempt the Clergy from secular authority Calvin affirmeth as much 4. Instit cap. 11. Sect. 1. Ecclesia Dei sua quadam spirituali politia indiget quae tamen a civili prorsus distincta est c. But under Correction I take it to be a great Errour though now it is the Common Idol of every mans fancy because that in our Kingdome since the Conquest but not formerly as hath been already declared cap. 2. the Courts of justice are divided the Temporal from the Ecclesiastical and so in most other Kingdomes Which yet I do not think to be the ancient manner not to be the best course though things being setled as now they are at this present it is not safe to change much for in a Kingdome the Courts of justice which have been long setled cannot easily be altered without danger and ill consequences But yet without any alteration of Laws or Courts the Courts may be furnished with judges of all sorts some Ecclesiastical persons as well as any others for it is against humane nature and Society to debat the Clergy and shut them out of all publick places of Trust and judicature The Issue and event whereof can be no lesse then the disgrace and reproach of the Clergy and to make them as the filth of the World and offscouring of all things Whereas it is well known that many Doctors of Divinity are as fit to be justices of peace as any Knights or Esquires The Doctors being learned in many kinds but very few of the Gentlemen eminent for Learning or if they be they are such as will be glad to have the Society and Company of Learned Doctors who are oftentimes skilful in Civil and Common Law and other parts of good Learning which do enable them for publick imployments There is a Discourse about Puritans lately published by a Lawyer one Mr. Parker wherein the excepts against Calvin and I think not amisse in that he doth according to the Popish grounds maintain that Spiritual jurisdiction differs from Temporal because it proposeth not the same ends but several which by several means may be better compassed But saith Parker The Spiritual Magistrate as I conceive can purpose no other end then which the secular ought to aim at for either the Prince ought to have no care at all of the honour of God or of the good of men and that which is the prime end of both true Religion or else his ends must be the same which the Prelate aims at viz. to vindicate Religion by removing or correcting scandalous Offendors Secondly to preserve the innocent from contagion by the separation of open Offenders Thirdly To prevent further obduration or to procure the amendment of such as have transgressed by wholsome Chastisement Thus he and I think not much amisse the scope and end of both is the same and as he saith in his Discourse Clergy men being as well Citizens of the Common-wealth as Sons of the Church and their cases importing as well perturbance of the State as Annoyance to the Church there can be but one head which ought to have command over both and in both It is manifest also that many cases are partly Temporal and partly Spiritual that scarce any is so Temporal but that it relates in some order to Spiritual things Or any so Spiritual but that it hath some relation to Temporal things so that the true Subject of Ecclesiastical and civil Iustice cannot rightly be divided I demand then why should the Courts be divided which was done
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
Commanders joyned as the Count of Bucquoy the Count of Tilly the Count of Papenheim the Count of Maradas Besides other great Captains of note having an Army of 40. thousand men and fought the great Battle neer Prague and prevailed powerfully Next day the City of Prague was surrendered the Palsgrave fled away and of 30. Committee-men in Prague which directed all businesse twenty seven were apprehended and the next year after they had been tryed and condemned by the Common-law of the land for rebellion and raising armies and Committees they were put to death upon one stage the same day Not long after ten thousand protestant Ministers and Churches were suppressed and the Ministers banished out of the Kingdome and the provinces annexed of Moravia Silesia Lusatia and other Countties of the Emperor The Covenanters who had seised on the Lands and Revenues of the Bishops and Deans aud other societies by way of Sequestration first which word they used in one article of their Covenant were forced to yield up those lands and to restore them to the former owners and so also in many other parts of Germany Lands and Houses of the Clergy which were taken away an hundred years before were restored to the right owners And for the Godly Covenant they renounced it aâ—d would have been glad to have enjoyed the favours which the Emperors formerly permitted them out of his Clemency But since they raised such a bloody War he would not suffer them longer to enjoy his former favours So that the Bohemians and most parts of Germany who enjoyed peace and great happinesse in all respects lost all by striving to overthrow the Bishops and the Ecclesiastical Laws and to take their Lands This miserable event might well have forewarned us in England not to offend in the same kind as they did to overthrow Bishops and all the preferments of the Church to bring in Preâ—byterian purity and lay elders and to impose a godly Covenant wich was indeed a wicked combination and Conspiracy far worse then the Covenant of the low Countries or that of France against Hen. 3. Hen. 4. which had almost confounded all France and was at length the destruction of those two great Kings who were both miserably murdered and put to death as our King Charles was in most abominable manner and in many respects more horribly then those two Kings for they were stabbed on a suddain by two villaines and without the consent of the people and severe punishments were inflicted upon them speedily But King Charles in a deliberate manner by men that pretended Justice and upright dealing who called an high Court of Justice never heard of before no Judges of the Land consenting or approving and so openly in the face of the sun and of all the world with an high hand and professed malice and outragious fiery zeal that the Emperor Maximilian did justly say that the Kings of England were Kings of Devils And though the Presbyterians would excuse themselves that they never intended the Kings destruction yet that is a frivolous and foolish excuse for as Sir Walter Raleigh saith truely Our law doth Construe all levying of war without the Kings Commission and all force raised to be intended for the Death and Destruction of the King not attending â—he sequel and so it is judged upon good reason for every unlawful and ill action is supposed to be accompanied with an ill intent Lord Coke 3. Instit. pag. 12. speaking fully of all kinds and degrees of treason saith Preparation by some overt Act to depose the King or take the King by force and strong hand and to imprison him until he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this upon the matter is to make the King a subject and to despoile him of his kingly office of royal government And so it was resolved by all the Judges of England Hill 1. Iac. Regis in the Case of the Lord Cobham Lord Gray and Watson and Clark seminary Priests and so it had been resolved by the Justices Hill 43. Eliz. in the Case of the Earls of Essex and Southampton who intended to go to the Court where the Queen was and to have taken her into their power and to have removed divers of her Councel and for that end did assemble a multitude of people this being raised to the end aforesaid was a sufficient overt Act for compassing the death of the Queen and so by woful experience in former times it hath fallen out in the Cases of King E. 2. H. 6. E. 5. that were taken and imprisoned by their subjects The Presbyterians did offend in this kind notoriously and therefore committed Treason manifesty for they imprisoned the King in divers places and at length in a remote place in the Ifle of Wight and what followed after is well known And all this done by them that were for the most part Presbyterians out of their design to compell the King to yeild to their projects to overthrow the Bishops and to take their Lands and Revenues which they account to be the flesh and bones of the whore of Babylon which they must devour and make the old whore naked bare and desolate The excellently learned Grotius who did perfectly understand and discover the practices of the Presbyterians as appears in many places of his works hath one remarkable passage in his treatise de Anti-Christo pag. 65. which shall here follow Iam vero fi illi qui dicuntur Dii intelligendi sunt Reges liber flagitiosissimus Boneherii de abdicatione Hen. 3. Galliarum Regis non argumentis tantum sed verbis desumptus est non ex Mariana aut Santarillo se ex Iunio Bruto quis is sit sat scio sed quia latere voluit lateat ex viris doctis quidem at factionis ejusdem Dictis facta congruunt haec est illa mica salis de qua infra aget Borborita quae facta est in mare salsum faetens apud Reges omnia circumsata corrumpens Circumferamus oculos per omnem historiam quod unquam saeculum tot vidit subditorum in principes bella sub Religionis titulo horum Concitores ubique reperiuntur ministri Evangelii ut quidem se vocant quod genus hominum in quae pericula etiam nuper optimos Civitatis Amstelodamensis Magistratus conjecerit nihil hic narrari opus est sapientibus dictum sat est Laudanda omnino est Regis Christianissimi prudentia virtus qui suos paris sententiae subditos tam solennia insanire vetuit Videat si cui libet de Presbyteriornm in Reges audacia librum Iacobi Britanniarum Regis cui nomen Donum Regium videbit eum ut erat magni judicii ea praedixisse quae nunc cum dolore horrore conspicimus Peter Moulin who was well versed in the Controversies of the times and suffered much in the late wars
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-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
Divine Institution But in this our Church Christian princes have further allowed the Clergy authority by virtue whereof they inflict civil punishments on Hereticks Schismaticks and other despisers of the Church As also many sage and grave Divines are in divers places endowed with the publick power of Justices of peace Concerning this jurisdiction let us inquire whether it may lawfully be granted to Churchmen which that it may lawfully be done these following reasons have induced me to beleive It is first to be considered that both these jurisdictions tend to the same end of promoting justice and brideling Vice but with this difference That that power which is meerly Spiritual makes use only of Spiritual means whereas the weapons of Civil authority be coactive and external as Imprisonment Fines and corporal punishments Here therefore would I know why it should be esteemed a wicked and unlawful Act not suiting to the holy function of a priest to correct Hereticks Schismaticks and other like and notorious disturbers of the Christian Common-wealths peace as well with civil and bodily Chastisements as those of the Spirit where power is given so to do to resist and pull down Vices c. To resist and pul down Vices by either way is a good and plausible action and of it self misbeseeming no person though never so holy The blessed Angels of heaven deem it a thing in no wise contrary to their Sanctity in the name and command of God to smite the prophane with corporal punishments why then should the Angels of the Church think it not lawful to adjudge the same Delinquents to any deserved punishments when by the Decree of their Soveraign Gods Vicegerent here upon earth it is so determined For the execution of Civil authority is not of it self repugnant to any person how holy soever nor disagreeing to the office of priesthood Again the high and absolute power of the giver perswades me that Church-men do by good right exercise this Jurisdiction For the King being by Gods appointment the Fountain of all Civil authority may without offence derive some rivolets thereof to what persons he shall think fit whether Lay or Ecclesiastical I said but some rivolets because though no Temporal office by Gods Laws are forbidden the Clergy Wisdome and Equity permit not Kings so far to burthen with State affairs as wholly to divert them from their spiritual function This power therefore is so to be intrusted 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 judgement or envious piece to determine how far this Jurisdiction is to be granted to the Clergy so that it may help and not trouble them in their Ministry But what Aristotle the Life of Philosophers said concerning the mean in virtues that it is to be ordered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the wise man shall think fit may be applied to this Temporal Jurisdiction that it is so far to be communicated to Churchmen as a judicious and wise prince shall think convenient Seeing then that it hath pleased christian Kings to arm the Clergy with some civil jurisdiction and ordain that to the greater improvement of Christianity and casting down of wickednesse they should exercise both Ecclesiastical and civil jurisdiction it is most apparently lawful and pious and plainly necessary by the aid of both Jurisdictions as with a two-edged sword to preserve piety and the peace of the Church and cut off its opposers Thirdly because to many it seems unfitting the Successours of the Apostles should exercise an authority which the Apostles themselves had nothing to do with Let us observe the difference of times and thence gather that this civil Jurisdiction is as expedient and necessary to the Divines of our time as it was altogether unnecessary and unprofitable to the Apostles Civil Jurisdiction is by the cheif Magistrate to be conferred on those that are subordinate and according to his Laws to be administred As long therefore as the Rulers of the earth waged war against the truth of the Gospel neither could they assign nor the Apostles without scandal to Christ and the downfall of Religion have received any temporal power from their hands But since Kings and their Laws began to subject themselves to Christ civil Authority by them given to the Ministers of Christ might have been a great furtherance to the advancement of the Gospel 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 avail to the confirmation of Christians in faith and obedience then any civil 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 Temporal and ordinary Jurisdiction Lastly When the Christian Church was in her infancy piety was more deeply rooted in the breasts of the Disciples and if they would have resisted the Discipline of the Church their rebellious minds were soon quelled by the cruelty of persecution and hourly imminent danger of violent death But now the Christian world wholly possessed and carried away with pride and Luxury hath so clean layed aside all respects of piety and modesty that all the spiritual power of the Clergy and Church-discipline if not seconded by civil jurisdiction breeds rather scorn and contempt then amendment in the malicious remorse of this present age Think then what rash and incompetent Judges they are who from the Apostles and their days conclude temporal Authority not requisite to our ordinary ministers A fourth argument may be drawn from Gods own institution and the most ancient practise of the Church God himself did annex civil jurisdiction to the office of Priesthood it is therefore no strange thing nor against the divine Law that a Clergy-man should bear sway in temporal affairs As appears fully in the former Treatise here before cap. 1. and 2. Where it is shewed that in all Courts of Iustic◠in Israel the priests and Levites were the principal Iudges both in the great Councel sitting in the Temple at Ierusalem and in the second Court of Iudgement residing in principal Cities Eli Samuel the Macchabees together with all the High-priests in the Old Testament did exercise this kind of authority But why it continued not for some hun-hundred years after the Gospel is made evident by reasons above alleadged But since Constantine the great submitted his Imperial Scepter to Christ you shall in all ages find the godly Bishops and Fathers of the Church administring Civil Jurisdiction by Religious Emperours to them imparted which if time would serve might be clearly testified out of Ecclesiastical Histories and Councels and out of the Emperours own laws but these are so sufficiently known to the learned that the citation thereof would prove an unnecessary
trouble Lastly let us out of our adversaries own grants and confessions prove what themselves deny They grant the Clergy a jurisdiction whereby they can cite before their Courts Hereticks Drunkards Adulterers and such like infamous persons admit accusations against them hear and examine witnesses and give sentence of excommunication on those that are lawfully convicted If by vertue of spiritual jurisdiction from Christ received they can do these things why shall they not by the accession of secular jurisdiction by the King conferred imprison the same malefactors or by such like civil punishments restrain their base incontinencies This Act of correction is no less warrantable in its own nature then that of excommunication both being put in execution by just and legitimate authority niether do corporal punishments lesse conduce to the Reformation of delinquents and the Churches good then those meerly spiritual Therefore by the allowance of superiour authority it is no less expedient that Clergy-men should inflict one kind of chastisement rather then another In a word learned M. Calvin doth grant that what Controversies soever happened between Christians to avoid strife and division they were wont to referre them to their Bishops by their judgment to be decided And St. Austin tells us that he dayly spent some time in secular affairs 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 do lawfully commit their civil Controversies to the arbitrement of Bishops surely Christian Kings may to the same Bishops lawfully commit the judgment of the like Causes if at the request of private men it be nor unlawful for Church-men to intermedle with secular businesses it cannot be unlawful to do the same by the appointment of the King For as the matter stands he doth no less interest himself in state affaires who decides controversies as an Elect Arbitrator then he who decides the same as a Iudge ordained by the Prince Let us conclude that ambitiously to hunt after or with prejudice to the Function of Priesthood to exercise Civil Jurisdiction 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 lawful and praise-worthy most agreeable to the ancient practice of the Church and no wayes repugnant to the Divine Scriptures To this Determination of the learned Bishop Davenant there is nothing replied by Dr. Burgesse but in an insolent manner he terms him onely a speculative Divine as if such a famous professor in the university and a most learned Bishop for twenty years together who was highly reputed for learning and piety should be so scornfully neglected by one that never spent seven years in the university nor ever enjoyed any fellowship a place of continuance in any Colledge to gain more then common learning in a trivial way as appeared fully when he came back to the University to go out Doctor and would needs take upon him to answer the Divinity Act which he performed so contemptibly that he was hissed and scorned publickly by all the Auditors and accordingly censured by Doctor Prideaux who reprehended him sharply in publick for his ignorance and insuffiency and some Papists who are commonly present at such publick Acts among the multitude hearing him to be so destitute of Latine Logick and distinctions upon the state of his questions publickly were heard to say Alass poor black sheep what maketh thee here Whereof I was both an eye and ear witnesse But as is formerly affirmed if some principal men of the Clergy be not in places of Authority and Judicature and some be not Justices of the Peace in every Shire the ordinary Clergy will be trampled on by the vulgar people in most vile manner taxed and assessed unreasonably by Constables and Committee-men and all such officers as is well-known by many instances which might be alledged and are commonly known to say nothing of the insolency of Souldiers and Quarter-masters who will be sure when they come to any parish to set first upon the Ministers house and furnish him with company enough to consume all that he hath in barnes or buttery without any mercy or compassion which may be easily proved but that it is a thing notoriously known past denial so that the Clergy may complain with the Apostle that they are made the fisth of the world and are the off scouring of all things to this day And all this done by the Parliament-members and officers who pretended to advance religion to maintain and uphold Ministery as well as Magistracy But the Laws being taken away or suspended whereby Ministers should be preserved and maintained there is risen up such a swarm of Sectaries Anabaptists Quakers and a rascal rabble of others who deny the calling of ministers and are as ready to oppress them in as violent manner as those Rebels that did rise in the 5. Rich. 2. Wat Tyler Iack Straw Iack Shepherd Tom Millar Hob. Carter and such like fellows as Cowper relateth them in his Epitome of Chronicles and as Iohn Stow reporteth in the Confession of Iack Straw at his death They would have destroyed all Bishops Monks Canons and Parsons and would have dispatched them all Only begging Friers should have lived that might have sufficed for ministring the Sacraments in the whole Realm Poor begging Friers having no good Lands or Revenues were not the object of the peoples malice but all rich men Lords and Gentlemen especially Clergy men should have been made a prey And so or worse is the Case of the Clergy in these times All principal al learned Divines if they have any Estates are miserably cast out of their houses and livings Bishops Deanes and Doctors or others of any eminent note are shamefully persecuted Only poor Curats poor Lecturers poor New-lights poor Schoolmasters who are like the begging Friers are suffered to continue and yet the Anabaptists and Quakers and such like are ready to cashier them to pull down Churches Steeple-houses and Stone-houses as they call Churches in derision but as Solomon saith there is no new thing under the Sun from the beginning of the world to the end it is so that necessitous men theeves and beggars will seise upon the estates of rich men if they have once power in their hands and can but lay hold on them The Speech of Doctor WILLIAMS Lord Arch-bishop of York in defence of the Bishops Rights to Sit and Vote in Parliaments I Shall desire as much water or time of your Honorable Lordships as your Lordships can well afford in a Committee because all that I intend to speak in this business must be to your Lordships onely as Resolved for mine own part to make hereafter no Remonstrance at all to his most excellent Majesty for these several reasons 1. That I have had occasion of late to know that our Soveraign whom God bless and
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
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. King 2. 35. And this is fully to be proved by excellent learned men As Sigonius Bertram Casaubon Moulin especially by the learned Hugo Grotius upon Mal. 5. 21. Where he doth accurately shew out of the Text Iosephus Philo and other Monuments of the Jews that there was no distinction of Courts the one Ecclesiastical the other Civil as Calvin and Beza and some others that follow them would have it but the Judges and Courts were united and the Priests and Levites the principal Judges and Officers in every Court to whom the people were to be obedient upon pain of Death Deut. 17. 12. They being appointed to hear every cause between blood and blood between plea and plea and between Stroke and Stroke being matters of Controversie within thy Gates And as our Laws call them Pleas of the Crown and Common pleas or whatsoever else did arise among them pertaining to God and the King 1 Chron 26. 30. 32. for which purpose God did scatter them in every Tribe and turned the curse of Iacob into a singular blessing to be divided in Iacob and scattered in Israel Appointing 1700 to be on the West-side Iordan and 2700 on the East-side The ancient frame of our Kingdome for 500. years beforre the Conquest was thus disposed and governed As Spelman sheweth fully in his learned Glossary and Councels and happy had it been if things had continued so still But now the Law being otherwise setled and the Courts divided it is not safe or easie to make alteration Only without change of Law or Courts the Benches may continue as they are though some more Judges be added in most Courts and some Eclesiastical persons among them as in the Saxon times Comes praesidebat foro Comitatus non solus sed adjunctus Episcopo hic ut jus divinum ille ut hnmanum diceret alterque alteri anxilio esset Consilio Praesertim Episcopus Comiti nam in hunc illi annimadvertere saepe licuit errantem cohibere Idem igitur utrique territorium jurisdictionis terminus Glossarium in Comes pag. 111. The Bishop and Earl of the County were joint Magistrates in every Shire and did assist each other in all Causes and Courts and so Mr. Selden in his History cap. 14. Sect. 1. By this means there was great union and harmony between all judges and officers whereas now there is great contention for jurisdiction and intollerable clashing in all Courts by Injunctions prohibitions Consultations and crosse orders to the great Vexation of the Clients and Subjects And by multiplying several Courts the number of Lawyers is greatly increased as Lord Cook sheweth 4. Instit. p. 76. Where he gives divers reasons of the increase of Suits in Law and in the same Book reckoneth up no lesse then 74. Courts of Law and justice of all sorts in the Kingdome besides the Ecclesiastical Courts Which are not many for the number and had little businesse to do when they were in greatest power For commonly two or three proctors were enough to dispatch the businesse of any Bishops Court without Advocates But in the Courts of Common Law there is a farâ— greater number of Lawyers in these times whereas there was but an 140. Lawyers and Attorneys appointed by that Martial and Legislative King Edw. 2. When he distinguished the Courts and appointed the number of Lawyers and Attorneys for the whole Kingdome whereof the Writ is referred unto by Lord Cook 4. Instit. pag. 76. But the writ it self is put down by Spelman in his Glossary pag. 44. 58. Sed hodie forte in uno Comitatu tot solummodo Atlornati reperiantur But the Division and Separation of the Ecclesiastical Courts from the Temporal seems to have proceeded first from Pope Nicholas the first as is mentioned in Gratian. Com. Cum ad verum 96. Distinct. about two hundred years before the Conquest which was imitated among us by William the Conquerour whose Statute for that purpose is recited and illustrated by Spelman in his Glossary and lately also published by Mr. Selden and Lord Cook 4. Instit. c. 52. So that as the Pope hath been the Authour of much evill in the World oftentimes so in this particular when he came to the height of his greatnesse having de facto the Supremacy in all Ecclesiastical matters he made the Clergy subject only to himself and his Deputies and Legates and such officers as he sent among us But at length Hen. 8. Contested with the Pope and recovered the Supremacy of his Crown though it cost much blood and opposition in his time But he having recovered it and it being approved by Parliament it is fully setled upon the King and vested in his Crown And as Lord Cook saith 4. Instit. pag. 331. His Majesty hath and Queen Elizabeth before him had as great and ample Supremacy and Iurisdiction 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 Clause of annexation in the said Statute of 1 Eliz. had never been inserted Wherefore the Speech of Iohn Pym as in Rushworths Collections 4. Caroli That the Supremacy was given by parliament to the Crown and as he seemeth to understand it may be taken away by parliament is a dangerous opinion not to be endured Lord Cook saith 4. Instit. pag. 325. The Act 1. Eliz is an Act of Restitution not a gift meerly given which was not formerly due and belonging to the jurisdiction of the Crown If therefore the King hath his Supremacy vested in his Crown so firmly and is Custos ntriusque Tabulae by the Word of God as the Arch-bishop sheweth Then this Ecclesiastical Head must be allowed to have some Ecclesiastical Sences to be consulted withal excellently learned and principal persons of the Clergy And as he addeth truly If Cranmer the Arch-bishop had been thus dealt withal and suppressed in the minority of our young Iosias Ed. 6. What had become of the great work of our Reformation and also if Ridley Latimer Hooper and the rest of the protestant Bishops Martyrs afterwards had been set aside and neglected the Reformation could not have been effected Therefore unlesse the King have good choice of Ecclesiastical persons excellently Learned Bishops both in the ancient Councels Fathers Histories and Controversies and in Canon and Civil Laws requisite to determine of great difficulties that will continually happen in the Church whereof the Conusance belongeth to the Spiritualty as Lord Cook sheweth out of the Statute 25. H. 8. cap. 21. and commendeth them for their Knowledge Integrity and Sufficiency and if so then much more at this day I saith Coke When all kind of Learning is eminently advanced to an higher
degree then in the time of Hen. 8. Iohn Pym in another Speech 4. Caroli would have the Arminian points setled and determined in parliament viz Concerning Predestination Absolute Reprobation Universal Grace Free-will and Final perseverance before the King should have Subsidies granted Tunnage or poundage But if they would give no money to the King till those difficult poins be cleared and resolved the King must never have any Subsidies granted For those Questions are so mysterious and abstruse that all the Divines in the world cannot yet resolve fully upon them But these and such like difficult questions in Divinity belong to the Convocation of the Clergy as Cook sheweth Instit. pag. 322. and they are to be called in time of parliaments by the Kings Writ and are to proceed juxta legem divinam Canones sanctae Ecclesiae saith Cook ibid. And they are divided into two parts viz. The Upper House where the Arch-bishops and Bishops sit and the lower House where the rest do sit And they have two prolocutors one of the Bishops of the Higher House chosen by that House another of the lower house and presented to the Bishops for their prolocutor Cook ibid. The Convocation of the Clergy made the thirty nine Articles of Religion the Common prayer Book and the Book of ordination of Bishops priests and Deacons and the Book of Canons To all which what subscription is required by Law Lord Coke sheweth pag. 323. But in the late long parliament all these Books and good orders are cast aside and neglected and nothing established in stead thereof But it is hoped that the most excellent and gracious King Charles the Second will so confirrm the Truth of our Religion and all good orders Laws Customes and Rights as there shall be a full and happy Conclusion of all differences and the peace of the Kingdome and Church established to the advancement of Gods glory and the rejoycing of all that are truly wise and religious Lord Cook sheweth pag. 325. How the Commission Court for causes Ecclesiastical was setled That such Iurisdiction Spiritual or Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or lawfully may be exercised or used for the Uisitation of the Ecclesiastical State and Persons And for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever be united and annexed to the Imperial Crown of this Realm But not to the House of Commons or any others but by the dissolution of the high Commission and all other Courts Ecclesiastical there is risen up such an infinite and prodigious number of sectaries factions divisions in Religion enormities and disorders as is lamentable to behold and all scandalous sins as adultery fornication incest and such as ought not to be named among Christians go unpunished dayly If a bastard Child be gotten the Justices of the peace do only take care for keeping of the bastard but for the offence and scandal given to Religion they do nothing that belongeth to the Ecclesiastical Court to injoyn what pennance is fitting according to Ecclesiastical Laws which have been neglected too much of late though they are ancient and fundamental as well as any Common Laws But it is testified fully by the best learned Divines in forraign Countries that our Church of England was the onely Church reformed by peaceable means and gracious Princes whereas others in France Germany and other places were reformed most part by tumults and violent wars Beza from Geneva said of the Reformation by Queen Elizabeth Doctrinae puritas viget in Anglia pure sincere so said Peter Martyr and Zanchy and Damens when they saw the Confession of our faith in the thirty nine Articles and others parts of our Reformation so excellently defended by the Renowned Bishop Iewell in his Apology and Defence thereof against Harding the Papist books far more excellent and pious then ever Cartwright or any Presbyterian published and of late times the learned Deodatus professor at Geneva doth magnifie the Church of England as the most eminent of all the Reformed Churches stiling it Florentissima Anglia ocellus ille Ecclesiarum peculium Christi singulare Perfugium afflictorum imbellium Armamentarium inopum promptuarium spei melioris vexillum splendidae Domini Caulae and much more he addeth speaking of our happiness before these troubles and so it might have continued still if the Clergy might have enjoyed those rights and priviledges which the priesthood of God did anciently enjoy in all ages for in the Law of nature before Moses the priesthood was honourable Priests being then the first born and eldest sons of the Family not younger Brethren or poor fellows of the basâ—st of the people How honorable the Priesthood was in the tribe of Levi is well known Sir Iames Sempill a learned Knight of Scotland doth shew it fully in his book of Sacriledge in many places Cap. 6. Sect. 4. speaking of the dignity of the Church ministry of old For tithes inheritance in the person of one Royal Melchisedeck Royal I say in regard of the great odds between that and this our age now For of old as writeth Iosephus the true mark of nobility was to derive a mans Pedigree from the Priesthood so Iosephus was a Gentleman because 〈◊〉 sanguine sacerdotali And in our time the onely best Tenure and Holding of Possessions was to hold of the Church but now all to the contrary For Rome hath frustrate her ministry of Matrimony and we at home ours of their patrimony She can bring forth no well begotten Children and we but few well beneficed Church men No Iosephs in her and all Iobs with us and instead to hold of the Church we hold all from the Church both much amiss And as he saith in his preface to King Iames Truely it never goeth better then when the Church Courteth it and the Court Churcheth it for Moses and Aaron were Brothers Well might the Learned and Religious Knight complain that things are much amiss when in the times of the light of Learning and Religion reformed hath in great measure flourished among us but of late been so defaced and deformed that it is lamentable to report more of it the Enormities being so great and scandalous that unless the Kings Majesty out of his singular piety and wisdome do resume the ancient Jurisdiction of his Crown Who onely hath the proper power and authority to reform and correct all manner of Heresies Schismes Abuses Offences Contempts and Enormitie as are the express words of the Statute 1 Eliz. as they are recited and inforced by Lord Coke 4. Instit. Pag. 325. there can be little hope of Redress but as the Queen then did assign and authorise Commissioners to execute this Jurisdiction so it may be now done Commissioners may be appointed by the King to perform and execute his power in as full and ample manner as Queen Elizabeth did and