depend vpon the power of supremacie For though these powers of order and jurisdiction be immediately derived from Christ the misticall head of the Church in respect of their institution commission internall qualification and deputation to persons to performe them yet they are mediately derived from our Prince the ministeriall head of our particular Church in relation to their execution For the power of order cannot bee lawfully exercised in these dominions without the licence and permission from the power of jurisdiction which power is originally derived from the Kings dominion 1. Eliz. cap. 1. over Ecclesiasticall causes and persons So that it is plaine in generall that they are dependant on his Crowne and supremacie To omit the jurisdiction in foro conscientiae that depends vpon the power of order I will for a more particular view of this dependent derivation consider the severall proper acts and workes of this Ecclesiasticall supremacie which as I conceiue may be reduced to these foure The first worke is reformation of the Church in Doctrine manners and ceremonies The second is convocations of Councels and Synods for the reformation The third is promulgation of the lawes and edicts proceeding either from his Highnes pleasure in publick declarations or the Canons constitutions decreed or confirmed in his Councels The 4th is in receiving of appeales giving definite determinate decisions restitutions and deprivations belonging to causes persons Ecclesiasticall Now all these acts haue their effects in the power of jurisdiction for the reforming power of it is ordinarily perpetually derived to Archbishops B. de iure to Arch-deacons and Deanes de consuetudine to be executed by them in their Provinciall Trienniall and Annuall visitations but it is principally restrained to the correction of manners This power is extraordinarily ad tempus granted to the Church representatiue in Convocation It is not turned into a running regencie rolling round to every particular Presbyter though it be not an ordinarie standing court the calling of which is the second worke of supremacie To this Convocation thus called there is given power and licence to deliberate of to order and doe all such things as shall concerne the setled continuance of the doctrine and discipline of the Church of England obtaining his Majesties royall consent in the proceeding and determinations as it is plaine in his Highnesse declaration And the lawes they make take their first force from the worke of his promulgation But before I proceed any farther I must of necessity take a little time though to some it may seeme an impertinent parenthesis rejoycingly to consider the gratious countenance our pious Prince so freely shewes to this discountenanced disabled house of Convocation Little did any thinke no not that able absolute States-man the last Lord-Chancellour though wished it that his Majestie could haue beene so fully and faithfully informed of the ancient power and priviledges of it as to thinke of restoring them seeing not onely in the opinion of the people but also in the practice of the lower house of Parliament it hath beene long dismembred from that high Court and lost all the power and priviledges as escheated to the same insomuch that it is questioned by some whether ever it was a member of the Parliament or no. But it seemes his Majestie did soone apprehend it to be an essentiall part of it and vpon a short search discovered that though heretofore it was a member whose nerues were wrested distorted distracted and racked from its naturall head by extention to a forraine yet there was no dissolutio continui as the Physitians speake from the head and therefore not from the collaterall members and seeing it was but a discontented discontinuance that did cause it to be suspected and suspended it being now againe contracted and knit most firmely to the head is vnited as closely to the members may safely exercise and enjoy all the power and priviledges that did of right belong vnto it with the Parliament for though it was no reason that it should haue the priviledges of the Parliament when it was distracted from it and assembled without it by vertue of the Popes Legates writ and so the power and purpose of it was forraine and justly came within the compasse of a Praemunire for the Clergie then was no true member of the common-wealth and so the Convocation cut off from the Parliament yet when as it is now assembled with it by the same writ of the King and the Parliament is not compleate without it being one of the three Orders and that State which makes it haue competent power in matters Ecclesiasticall that it is not a meere temporall Court and that in the judgement of those that had least reason so to esteeme it for wee finde 1. Philip. Mariae c. 8. 1 Phil. Mar. c. 8. That the Legate of Iulius the third tooke great care to haue Statutes repealed made against the Popes supremacie wherein hee granted them to be authentically made and consequently that they had Ecclesiasticall power to enact them otherwise by reason of nullitie they had been cancelled and abrogated in themselues And Antonius de Florebellis an Italian Prelate in his Panegyrick de restituta religione in Anglia saith it is done honorifico vniversi Anglorum consilii decreto in which speech Florebeâ— rat ad Marian he supposed their power to decree it which he would not haue done if hee had held it to be a meere temporall Court and he must necessarily haue so accounted it if hee did not reckon the vpper and lower Convocation Houses as members of it exercising equall power with equivalent priviledges As it was plaine in a particular example in that Parliament Fox Act pag. 16 for when Arch-deacon Philpot was questioned for some words that passed from him in the Convocation House hee pleaded that hee was priviledged to speake them since the Convocation was a member of the Parliament and this plea was not refused but neglected For they were not ignorant what was enacted by Henry the sixth to wit that all the Clergie 8 Hen. which be called to the Convocation by the Kings writ shall fully vse and enjoy all such liberties as the great men and Commons of the Realme haue that are called to the Parliament And as they had some priviledge so it is plaine by a Statute vicesimo quarto of Henry the eight 24. Heâ— though now abrogated that they had once as much power in their receiving appeales from inferiour Courts Ecclesiasticall when it was a Praemunire to appeale to Rome or else-where The words of the Statute printed in the yeare 1550 are The partie grieved may appeale to the spirituall Prelates Abbots Priors and Proctors convocate by the Kings writ in Convocation So that the restitution of the Convocation was a worthy consideration in his Majestie seeing it is as neerly and deerely annexed to his supremacie as the Parliament is for his Majestie having two
because they hold not tythes due iure divino and that because they desire still to hold them by the law of the land And that they may more colourably continue it they hold no such sinne as Symonie that the presented may make a symonaicall contract whereby they are confirmed and corroborated in their sacrilegious vsurpations But I will not dispute the poynt whether there be any such sinne as Symonie in relation to a private presentation without respect to orders taken with it But I am sure none will deny but where is a symonaicall contract there is perjurie in the Instituted As for sacriledge I grant it is not easie for men that are guilty of it to be convinced that it is a sinne For sinnes of omission cannot so quickly and sharply touch the conscienee because they are the breach of an affirmatiue law which doth not so strongly check the vice as informe to the dutie especially when pleasure or profit haue bribed the judgement For I feare some hold stolne tythes the sweetest part of their inheritance as it is said by the Epicures Zetzes Chil. 7 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who doting vpon voluptuous sweet delicates called hony the tenth part of the Ambrosia and perhaps that sect set vp the trade of Bee-mongers in Athens as Synesius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synesiuâ— 136. So I am afraid the tickling sweetnesse of tythes is the cause why the smart and sowrnesse of sacriledge is not felt nor tasted And therefore in my opinion Thom. 〈◊〉 q. 155. Thomas Aquinas doth well to make sacriledge speciem luxuriae so that it may be a sinne and yet they never be convinced of it I am sure not onely the ancient Fathers of the most pure primitiue Church but even the godly Emperours did esteeme it a sinne and that in a high degree that when they granted generall pardons at Easter and other solemne timâ—s they excepted sacrilegious persons As Theodosius the great Theod. tit de Indulg Crim. ob diem Paschae quem intimo corde celebramus quos reatus astringit carcer inclusit solvimus attamen sacrilegus maximè à communione istius munieris separetur So also Gratian and Valentinian Religio anniversariae observationis hortatur vt omnes periculo carceris à metu poenarum eximi iubeamus verùm eos excipimus quos scelera graviora compulerunt Theod. eodem tit vt qui sunt sacrilegi sepulchri violatores So in many of the Novels 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vpon Easter day set all persons free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Harmenopulus Promp Iur. Civ l. 6. tit 5. but if any be guilty of sacriledge set him be kept still in hold So that you see it was reckoned inter extraordinaria crimina in those dayes and so it would be thought with vs if profit did not blinde the judgement in the payer of tythes and indiscreet covetousnesse leade many Clergy-men to make no distinction betwixt free and friendly compositions with a bountifull Patron and sacriledge In my poore judgement the Canon Law is but just Quicunque c. 6. q. de Iur. Patronatus in decreeing that Si patronus Laicus ad inopiam fuerit redactus hee must haue some competent sustenance from the incumbent especially if he haue not beene sacrilegious and so by Gods judgement brought to it And I doe conceiue that this may be notwithstanding they doe not charge any parsonage with annuitie rents which is prohibited by the statute of Elizab. 3 Eliz. c. 2. Thus it is plaine that the revenues and maintenance of the Clergie are possessed by the Kings Lawes and may be demanded as due by them § 5. The other part of the honour of the Clergie annexed to the power of order is in priviledges immunities by which this power is exercised with more ease delight and respect and as it were with the whole man without distraction Now all the priviledges the Church doth enjoy or desire arise and are raised by the Kings lawes and royall prerogatiue As that ancient-often-confirmed Magna Charta doth fully confirme all former priviledges of the Clergie Magâ— ta cap And that was then favour enough for then they had priviledges to a surfeiting surplussage but now the Clergie stands in more need of them and they humbly expect them onely from the favour of their Prince who hath a plenitude of power to grant more and larger priviledges than ever they will desire For all priviledges are granted in relation to some Law and the power of an absolute Prince is aboue all Lawes as Dion Chrysostome told just Trajane 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cujac vat liâ— or as the same Counsellour to the same Emperour 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Cujacius explaines and limits to coactiue correctiue Lawes which Dion saith began in Augustus dayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion none of the ancient Romans were freed from lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is from the necessity of obeying And I doe beleeue that the Scriptures seeing that they say more for the right of Kings than any booke in the world doe if not fully set downe this power yet permit it with approbation in some cases especially for the publick good of the Church which I am sure is a farre more conscionable and commendable course than to accommodate religion to serue the turne of the State as that judicious Amiratus vpon Tacitus Bisogna accommodar la ragione di stato alla religione nan la religione alla ragione di stato Our King then being a most absolute Monarch hath this prerogatiue and from that wee haue and hold our priviledges not from that written prerogatiue abstracted out of Fitzherberts Abridgement by Sr William Stanford whereby the Kings Exchequer hath many priviledges and peculiar processes as the Civilians call them privilegia fisci fiscus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habet Cujaciâ— serv l. 2 But from an vnwritten vnrestrained right of dominion whereby he hath plenarie power not onely to make legall propositions of validitie or voyde in their first institution or to interpret them either by declaring them to bee corrected in some poyntes and cases especially if hee correct them by a more particular expresse pressing law as hee may correct the law of nature by the law of nations the law of nations by the law of armes the law of armes by the law of particular Leagues and all by the power of dominion or restraine them in respect of some persons or publick societies but he may dispence also with them since some penall statutes are made with relation to his power of pardon after the act therefore it is not so much to exempt them from being obnoxious to the punishment by pre-interpreting that it was not intended to extend to such persons for so the priviledge is not against law but besides it or aboue it Yea there are statutes dispensatorie as
the power and honour of the Clergie are inseparablie derived from the supreame Soveraigne then in being and not communicable to any other state so the particular powers and regalities by which they are more especially conveyed are inseparably and incommunicably appropriated to his royall person As for instance the power of the state of the Clergie is originally derived from his Ecclesiasticall supremacie the honours from his lawes and royall prerogatiue All Kings I confesse haue not Ecclesiasticall government and that because many giue up their right some know it not as many of our Kings for many yeares were bereaved of it in whole or in some principall parts by giving and granting to the Pope an inch in breadth with them and he taking an ell in height aboue them But when the first defender of the faith Henry the eighth was weary of the weight of that intollerable vsurpation especially when he perceived that the Popes ambition soared vpon the wings and winde of the spirituall supremacie to a temporall superioritie The King like Iulius Caesar that he might fully recover into his power the temporalitie potestatem Pontificiam Iacob origi◠§. 9. cum Caesaria potentia coniunxit hee resumed the Ecclesiasticall power finding that it was impossible in the course of the moderne policie of the Popes to bee supreame agent in temporall affaires while they were the highest in spirituall government especially since these powers cannot rest really divided in a Monarchie though they bee really distinct in a Monarch being a mixt person So that the statutes in the vicesimo quintò of Henry the eighth and primo of Elizabeth which determinately set downe this power of supremacy are not lawes inductory of a new but declaratorie of the ancient authoritie of our Prince with the solemne signification of their reas-sumption And our sacred Soveraigne doth not alone take this power for his right but many other Potentates in Christendome that haue not so much reason As the Kings of France Spaine Thesaurus Polit Apoteles 50. Guiceiardino hist lib. 4. Denmarke Poland Hungarie and Sicily which three last states haue more nearer dependance upon the Pope then any in Europe for Sicily hath beene held of him as a spirituall feud as Poland and Hungarie were both in one Popes dayes Benedict the seaventh converted from Paganisme Herbert histor Poloniae lib. 2. cap. 7. and one would thinke and so it seemes wholly at the Popes disposall especially in spirituall affaires Yet in Sicily the Kings of Spaine doe not onely claime supremacie of over-seeing but also superintendencie in doing in Ecclesiasticall employments Baron Anal. Anno 1209. and the Kings of Poland whose power is moderated by the limits and conditions of an election Thuanus hist lib. 56. Archiepiscopos Episcopos coenobiarchas dicunt suoque arbitrio eligunt and the Kings of Hungarie doe vse the same power and with as much reason in a Canonists opinion as we doe for though they cannot de iure yet Reges Angliae Hungariae conferunt beneficia privilegi◠Papae Guymer Comment prag sanct tit de Innatis The Kings of France haue alwayes beene at defiance with the Pope for this power renewing continually pragmaticall sanctions in defence of it especially in the time of Charles the seaventh therefore called Carolina sanctio Duarenus pro libertate Eccles Gallicanae §. 4. which was of that force by vertue of that approbation of the free Councell of Basile that it curbed and casheered the Popes power causing them to impeach it by appealing from it almost in all causes which Pius the second perceiving sollicited Lewis the eleventh the sonne of Charles to abolish and repeale that sanction Concordat Galliae Leonina Constit being enacted in a seditious schismaticall conventicle which he well approved for a generall Councell when hee was a private Aeneus Sylvius Secretarie to Fredericke the third The King for the present called it in but his wisdome presently found the mischiefe and rewarded Cardinall Balve very well for vrging him to it as the Popes Legat Prot◠gis ad cil 〈◊〉 apud histor Phili lib. 9 Conc◠Guic◠hist 〈◊〉 Rex Cardinalem Balvam in carcerem detrusit ob detrimentum consilio suo emergens and with so much displeasure that Philip de Comynes saith Cardinalis Balvensis carcerem horrendum excogitavit in quem inclusus primùm erat quatuordecem annos detentus non obstante Pontifice Romano The Kings of France were ever after stout in the defence of that sanction till Francis the first in his interview with Leo the tenth did remit the force of it in the Concordata Galliae which made his serious Secretarie Budaeus say Palladium Galliae proditum esse Budae lib. 5 The Kings of Spaine in Casteile haue some limited spirituall power by a late priviledge of Adrian the sixth granted to Charles the fifth but when they see their time Mar◠della they take so much as shall serue their turne as Philip the second seised vpon the temporalls of the Archbishoprick of Tolledo the Bishop Caranza being apprehended for suspicion of new heresie and when Sixtus Quintus sent to him to vndertake a warre against England and told him that he would remit to him all the revenewes that arose of that Bishopricke sede vacante prudentissimus princeps respondet se nil de suo Pontifici largiri Thu◠lib. 7 though at home his power is but what hee pleases to take yet in other of his territories it is lawfully as large as another Princes as in Burgundy and Belgia he hath the same right the King of France once had as Charles the fifth made a statute of Mortmanie Nullis personis Ecclesiasticis vel locis sacris licet vllam rem immohilem Thes lit 4 absque principis licentia acceptare vel habere And Philip the second his sonne publishing the Councell of Trent in the Low-Countries did not let it passe in all points with the full strength of an Ecclesiasticall law but restrained it with an expresse clause of speciall privision that it should in no wise prejudice or diminish any priviledge the King enjoyed touching possessary judgements or Ecclesiasticall livings or concerning nomination therevnto Boter Heroic quast lib. 1. But I will not now enquire whether our Prince hath such a supreame power iure positivo Pontificio I am sure it is iure divino Apostolico and supposing such a power I will for more distinct proceeding consider the severall streames and strings of this Ecclesiasticall power and how they flow and are fastned to the head and top of Soveraigntie paralleling them in the severall parts and points of this honour discovering how they are annexed to these powers and how they arise are raised and stand by his Maiesties lawes and Regall prerogatiue § 5 All power Ecclesiasticall is either power of order or of jurisdiction Durandus de origine jure Civ conclus 2. and both these