Praepositus aut minister Regis nec aliquis Laicus homo de legibus quae ad Episcopum pertinent se intromittat nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat Iudicium verò in nullum locum portetur nisi in Episcopali sede aut in illo loco quem ad hoc Episcopus constituerit And the punishment for disobedience to the Ecclesiasticall Iudges was much alike as formerly was enacted under the Saxon Kings As by King Alured Si quis Dei rectitudines aliquas disforciet reddat Lashlite cum Dacis Witam cum Anglis And the same law is afterwards confirmed and renewed by King Canutus by other Kings whereby it appeares how before the Conquest and likewise after for a long time the authority and jurisdiction of the Church was maintained and upheld by the setled lawes of the Kingdome How they had power in their Courts to excomunicate and further by the helpe of the King and the Sheriffe to proceed against stubborne offendors and such asopposed or contemned their authority so that here is the present practise and law confirmed by many hundred yeares continuance And this is according to that which Iustinian saith of all spirituall causes in the Novell 123. si pro criminal si Ecclesiasticum negotium sit nullam communionem habento civiles Magistratus cum ea disceptatione sed religiosissimi Episcopi negotio finem imponunto If it be an Ecclesiasticall suite let the civill Magistrates have nothing to doe there with that plea but let the Bishops end it Whereby it appeares that Prohibitions from the temporall courts were not then allowable which certainly came not into use till after the Councell of Clarendon under Hen. 2. Wherein the Clergy were inforced to appeare in the temporall Courts one Canon thereof being Clerici accusati de quacunque re summoniti à Iustitiario Regis veniant in Curiam responsuri ibidem de hoc unde videbitur Curiae Regis quid ibi sit respondendum et in Curia Ecclesiastica unde videbitur quod ibi sit respondendum Ita quod Regis Iustitiarius mittet in Curiam sanctae Ecclesiae ad videndum quo modo res ibi tractabitur Et 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 Councell Matth Paris doth sharply inveigh against them Hancrecognitionem sive recordationem de consuetudinibus et libertatibus iniquis et dignitatibus Deo detestabilibus Archiepiscopi Episcopi et Clerus cum Comitibus Baronibus et proceris juraverunt And as he addeth His itaque gestis potestas laica in res et personas Ecclesiasticas omnia pro libitu Ecclesiastico jure contempto tacentibus aut vix murmurantibus Episcopis potius quà m resistentibus usurpabant And this appeareth also by that which Mr Selden relateth in his notes upon Eadmer pag. 168. that long after in Ed. 1. time the Clergy had so many oppositions and hinderances in their proceedings from the temporall Courts that they exhibited a petitionin Parliament wherein they recitethe grant and Constitution of Will 1. allowing them their owne Courts by themselves and specify their complaints particularly which hecalleth Gravamina Ecclesiae Anglicanae and saith they arethose mentioned in the Proeme of Articuli cleri And in this age we have great cause to complaine of Prohibitions but whereof I will say no more now as for the temporall Courts the Conquerour appointed them to follow his Court Royall which custome continued for many yeares till under King Iohn at the instant request of the Nobility it was granted Vt communia placita non sequentur curiam 1. Regis Sed in loco certo tenerentur That the Courts of Iustice for common pleas should not follow the Kings Court Royall but be held in a place certaine as now commonly they are in Westminster Hall Whereas before the Kings appointed one Grand-Lord chiefe Iustice of all England who for his authority and power was a greater Officer both of State and Iustice then any in these last Ages ever since that Office was diminished by King Ed. 1. and most of those great Iustices were Bishops till at length the Pope forbad it XXIIII But the Courts being now divided in the kingdome many hundred yeares the Ancient manner is forgotten and unknowne save only to the learned and the scarres of the Norman Conquest are so overgrowne that few men are sensible what reliques of slavery doe still remaine upon us by changing the order of the Courts the language of the law in great part with other things that I will not now mention But being so setled by the Conqueror and continued by his successours the Temporall Courts in processe of time grew too powerfull for the Ecclesiasticall and by their Injunctions and prohibitions stopt many proceedings especially after the Councell of Clarendon under Hen. 2. Wherein the power of the Clergy was much abated And all Ecclesiasticall Iurisdiction so crushed that it continued lame ever after although the Clergy by appeales to Rome did oftentimes help themselves and much molest their adversaries At length under Hen. 8. upon his breach with the Pope the Ecclesiasticall Iurisdiction was much abridged and restrained in very many particulars and reduced to a narrow compasse becoming much more subject and obnoxious to the Injunctions orders and prohibitions of all the Temporall Courts that now I marvell that any should complaine or envy at their power or greatnes there being no cause of any value or moment but by one order or other isdrawne from them to the Temporall Courts And now at last there want not some that would have all Ecclesiasticall Authority and Iurisdiction either wholy suppressed from the first Court to the last or at least so abated mingled or changed that what forme or force of government shall be left remaining seems very uncertaine But if Presbyteries and such like consistories of the forraigne and new fangled devising were erected there will follow great confusion and disorder to the infinite disturbance of peace and quietnesse in the kingdome by alteration ofso many lawes and customes and of the common law it selfe whereby the kingdome hath been governed so many yeares and setled in peace and all mens estates and lands held in certaine possession For such great and universall changes as will follow upon the dissolution of the Hierarchy and taking away their votes in Parliament and other eminent parts of government will produce such ill events and troublesome distractions as will not be pacified within the compasse of any mans life now in being Which I heartily pray God to prevent and by his good spirit so to direct and blesse the endeavours and counsells of the supreame Court of Iustice now assembled that all our feares and doubts may bee quieted and the voice of peace and truth restored to our dwellings
de Tribu Levitica And if these could not determine the businesse in question thenthey did appeale to the Sanhedrim at Ierusalem When David was old and neare his death he appoynted Solomon to be king after him and caused a Parliament of all Israel to be assembled wherein he gathered together all the Princes of Israel with the Priests and Levites 1. Chron 24. 1 2. In this great Parliament the Priests and Levites were not omitted nor in any Court of Iustice in that kingdome For as it is vers. 4. there were sixe thousand of them appointed Officers and Iudges throughoutthe land of Israel Which is the thing that now many of our common people doe much dislike not well induring a few Iustices of peace to be of the Clergy whereas wee have the example of David guided and directed by the spirit of God as the text saith 1. Chron. 28. 12 13 19. so disposing and ordering the Levites that he appointed some for the outward businesse over Israel for Officers and Iudges A thousand and seven hundred were Officers of Israel on this side Iordan in all busines of the Lord and in the seruice of the King This text is very plaine to prove that the same man may be employed in Ecclesiasticall matters of the Church as also in the Kings service So verse 32. David appointed two thousand and seven hundred chiefe Fathers to bee Rulers of the Reubenites Gadites the halfe Tribe of Manasses who were beyond Jordan for every matter pertaining to God and affayres of the king And cap. 26. 14. Zecharias a Levite is commended for a wise Counsellour But that now any of the Tribe of Levi should be Counsellours Iudges or Officers unto Princes is accounted by some an unlawfullthing or at least not very commendable whereas wee see by this very law and direction of king David thatthe Levites might attend businesse belonging to the worship and service of God and instruction of the people as also the publike service affayres of the King and State And so the Commentaries doe affirme as Lavater in cap. 23. per civitates provincias judicia Ecclesiastica civilia exercuerunt Non omnes qui consolatione doctrinâ indigebant potuerunt Hierosolymam venire multi quotidie docendi et erigendi erant fuerunt igitur passim qui eos docuerunt Habuerunt autem illi sub se alios quoque Vacabant sacris literis alios instituebant et causas juxta legem divinam decernebant In cap. 24. sic Petr. Martyr in 2. Reg. cap. 11. Neither will it hinderthe study of divinity or care of preaching the Gospell if some fit men be imployed sometimes in the government of the publique for the well ordering of the publique and preservation of peace and justice will more advance the Gospell and abundantly countervaile 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 publique Meetings Convocations Synods and such generall Assemblies Besides the Commonwealth and Church is a mixt government and consisteth of all manner of persons of infinitly severall conditions and trades and courses oflife and seeing the Clergy are mingled among them and infinitly intangled especially of late dayes being made subject which they were not before to all temporall lawes suits arrests executions imprisonments impositions taxes charges and subsidies it is but reasonable that the Clergy should have some of their owne tribe in place of judicature and office to see the inferiour membersdefended and faire carriage shewed to them Aristotle saith lib. 3. polit. cap. 1. Civis nulla re aliâ magis definitur quà m participatione judicij ac magistratûs Whosoever are citizens in a Commonwealth meaning properly citizens and of the better sort not labourers porters strangers or aliens they ought to have voyce and suffrage and to be capable of Magistracy and office if they shall be found worthy and fit for it by any excellent parts of learning knowledge and wisdome Wherein the Clergy have some opportunity to excell others and often doe goe beyond the ordinary sort of men that are not bred up in learning Arts and Sciences And as Sr Francis Bacon observes out of the ancient Roman law there belongs to every subject certaine common rights and priviledges which cannot be taken from any of them 1. Ius civitatis 2. Ius connubij 3. Ius suffragii 4. Ius petitionis or Ius Honorum These foure ordinary rights and freedomes are by the customes and originall principles of humane societies due to all citizens of quality such as ever the Clergy have been esteemed and still ought to be if men will professe themselves to be true Christians indeed and to honour the messengers and Embassadours of our Saviour Christ whom he hath appointed to instruct and governe his Church and people The Pope deprived his Clergy of the two former rights by accounting them separate and exempt from the common lawes of all kingdomes and forbidding marriage to them And now our zealous professours would deprive our Clergy of the two later priviledges the right of voyce and suffrage in all principall businesses and the right of honour and office whereof they would make them uncapable and render them base and equall only to the inferiour multitude and scumme of the people XV If the Clergy might now enjoy those ancient priviledges which are mentioned in scripture as Genes 47. of Pharaoh who in the time of famine and great extreamity spared the Priests lands and allowed them their portion so that they sold not their lands then men might talke of applying their studies and meddling with no common or worldly busines 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 lawfull 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 of the Clergy should have voyce and suffrage in the lawes that are enacted for their government and taxation XVI Besides the course of lawes and government is not much altered from what was in those dayes when holy Fathers spake of wholy applying themselves to prayers and sacred studies and diligent preaching of the Gospell as if they were to doe nothing else not so much as to provide bread or necessaries for their families for then they lived most part single in Colledges and Monasteries and societies under the Bishops where all 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 forgoe being secular and parochiall Ministers married men and thereby charged with children and
the price of his land as other zealous christians then did to pious uses Why hath Satan filled thy heart to lye unto the holy Ghost and to keep back part of the price of the land Whiles it remained was it not thine owne And after it was sold was it not in thine owne power But after he had given it then it was not in his owne power to resume or detaine a part This text deserves well to be considered on before men proceed to arbitrary resumption of things consecrated to pious uses XI Butconcerning the legislative power and votesof Bishops in making lawes to regulate the commonwealth and to preserve peace and justice among all sorts of men there is not to be forgotten an ancient law of king AEthelstan That worthy king in his lawes hath one chapter 11. De officio Episcopi quid pertinet ad officium ejus Episcopo iure pertinet omnem rectitudinem promovere Dei scilicet ac seculi imprimis debet paeem ordinatum Dei instruere quid ei iure sit agendum quid secularibus iudicare debeant Debet enim sedulò pacem concordiam operari cum seculi iudicibus qui rectum velle diligunt incompellationum adlegationem docere ne quis alij perperà magat in jurejurando vel in Ordalio Nec pati debet aliquam circumventionem injusta mensurae vel injusti ponderis sed convenit ut per consilium testimonium eius omne legis scitum et Burgi mensura omne pondus ponderis sit secundum dictionem ejus institutum valde rectum Ne quis proximum suum seducat pro quo decidat in peccatum Et semper debet Christianus providere contra omnia quae praedicta sunt ideo debet se magis de pluribus intromittere ut sciat quomodo grex agat quem ad Dei manum custodire suscepit ne diabolus eum laniet nec malum aliquid superseminet Nunquam erit populo bene consultum nec dignè Deo conservabitur ubi lucrum impium magis falsum diligitur Ideo debent omnes amici Dei quod iniquum est evervare quod justum est elevare non patiut propter falsum pecuniae quaestum se forisfaciant homines erga verè sapientem Deum cui displicet omnis iniustitia Christianis autem omnibus necessarium est ut rectum diligant iniqua condemnent saltem sacris ordinibus evecti iustum semper erigant et prava deponant Hinc debent Episcopi cum seculi Iudicibus interesse iudicijs ne permittant si possint ut illius culp â aliqua pravitatum germina pullulaverint Et sacerdotibus pertinet in suà diocesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alij noceat non potens impotenti non summus infimo non praelatus subditis non dominus hominibus suis vel servis aut liberis molestus existat et secundùm Episcopi dictionem et per suam mensuram convenit ut servi testamentales operentur super omnem Sciram cui praeest Et rectum est ut non sit aliqua mensurabilis virga longior quà m alia sed per Episcopi mensuram omnes institutae sint et exequatae per suam diocesim Et omne pondus constet secundùm dictionem eius et si aliquid controversiarum intersit discernat Episcopus Et uniuscuiusque domini necesse proprium est ut compatiatur et condescendat servis suis sicut indulgentiùs poterit qui à domino Deo empti sunt aeque chari servus et liber et omnes codem praetio redemit et omnes sumus Dei necessariò servi et sic judicabit nobis siout antejudicavimus eis quibus judicium super habuimus in terris It is manifest hereby that by the ancient lawes of this kingdome what trust charge and care is reposed in the Bishops not only to direct matters Ecclesiasticall but also to assist rule and guide temporall affayres to preserve peace Iustice upright dealing just and true administration of severall offices and duties whereby religion is much advanced and adorned when men are honest and upright in their actions contracts bargaines andcivill dealings amongthemselves So that they may not clash or oppose Religion or such Acts as have speciall relation to Religion for all publique Statutes Acts and Constitutions for the most part doe in some degree more or lesse trench upon Religion and the furtherance or hinderance thereof So that they can hardly beduly and rightly enacted and framed without the advise counsell assistance of Bishops the Clergy XII And though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affayres yet that is not absolutely forbidden but in a qualified sense as in the famous councell of Cloveshoe under Cuthbert Arch-Bishop of Canterbury An. 747. Canon 1. negotijs secularibus plus quà m Dei servitijs quod ab sit subditus existit To attend secular affayres more then spirituall and to be wholy imployed and conversant in temporall matters without due regard to the better part but it will not hinder sacred studies nor the diligent preaching of the Gospell that some men at convenient times have a charge and oversight of temporall affayres and the carriage of publique businesse And concerning this see more in Bishop Davenants determinations at Cambridge Quaest. 11. Civilis Iurisdictio jure conceditur personis Ecclesiasticis XIII Thus much might serve for reply to the Examiner especially upon the fift reason which I hold to be the only thing materiall in the whole discourse for the rest will appeare to be needlesse if this be cleared But if he would look back to former times he shall find that our kingdome and government followed the ancient manner of Gods owne people of Israel whose Ceremonies and Ritualls though they now be abolished yetthe generall rules of Iustice Equity Government and Order doe still remaine And as God made the Priesthood then Honourable in the Common-wealth and committed a great part of the government unto them so doubtlessenow underthe Gospell the Priesthood ought to be Honourable and to have a principall part in the ruling and governing of the state and Common-wealth To be a Priest in Israel was to be a chiefe man Levit. 21. 4. and therefore in all their Courts of Iustice the Priests and Levites were chiefe men in authority for deciding of all causes both in the great Court of Sanhedrim at Ierusalem which was a continuation of the 70. Elders appointed by God himselfe Numb. 11. and was answerable in authority to our Parliament and also in the lesser Sanhedrims forthe government of cities in every Tribe there were alwaies two allotted of the Tribe of Levi for assistance as Iosephus sheweth Lib. 4. cap. 8. Antiquit Oppidatim praesint septem viri probatae virtutis etiustitiae cultores Singulis Magistratibus attribuantur duo Ministri
families and also made obnoxious to all lawes suits and impositions without any exemptions or priviledges So that it is but a monasticall and in part a Popish fancy to talke so much of applying their studies and only preaching the Gospell for by many a writ and warrant from severall Courts of Iustice 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 publique Office XVII Further it is but a Popish opinion that Regimen Ecclesiasticum est distinctum à politico Which Bellarmine maintaines 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 affirmes as much Instit. lib. 4. cap. 11. 1. but under correction I take it to bee a great errour though now it is the common Idoll of every mans fancy because that in our kingdome and so perhaps in most others the Courts of Iustice are divided the Civill from the Ecclesiasticall which yet I doe not think was the ancient manner nor to be the best course though things be sleighted as now they are at this present it is not safe to change for in a Commonwealth the Courts of Iustice that have been long setled cannot easily be altered XVIII There is a discourse about Puritans lately published by a Lawyer one Mr Parker wherein he excepts against Calvin and I think not amisse in that he doth according to the Popish grounds maintaine that spirituall jurisdiction differs from temporall because it proposeth not the same ends but severall which by severall meanes may be better compassed But saith he the spirituall Magistrate as I conceive can purpose no other end then which the secular ought to ayme at for either the Prince ought to have no care at all of the honour of God and the good of men and that which is the prime meane of both true Religion or else his ends must be the same which the Prelate aymes at viz to vindicate Religion by removing or correcting scandalous offendours Secondly to preserve the innocent from contagion by the separation of of open offendors Thirdly to prevent further obduration or to procure the amendment of such as have trangressed by wholesome chastisment Thus he and I thinke not much amisse the scope and end of both is the same and as he saith a little before in his discourse Clergy men being as well citizens of the Common-wealth as sonnes 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 temporall and partly spirituall and that scarce any is so temporall but that it relates in some order to spirituall things or any so spirituall but that it hath some relation to temporall things so that the true subject of Ecclesiasticall and civill Iustice cannot rightly be divided I demand then why should the Courts bee divided which was done first among us by William the Conquerour And why should not there bee Iudges partly spirituall as well as temporall in all Courts saving for the danger of innovation as it was anciently among the Saxons or at least why should not the supreame Court of Iustice which is to give law to all other Courts bee well tempered and mingled with all sorts of men Ecclesiasticall and Civill the wisest and choycest that can be found in the whole state and kingdome Why not Priests and Levites admitted into the number as well as in the Sanhedrim of the Iewish commonwealth which was equall to our Parliament and was instituted by God himselfe And I take it there can be no just exception but that our Christian Commonwealths may most safely follow the generall Rules of policy and government which God ordained among his owne chosen people without any imputation of Iudaisme Now among them some of the Priests and Levites were not only Iudges and Elders in their own cities which were allowed them to the number of 48. in the whole but sate with the Elders of other cities and were Iudges and Officers over Israel Yea many things by Gods law were wholy and chiefly reserved to the knowledge and sentence of the Priests as Leprosy Iealousy Inquisition for murder False witnesse and such like which now among us for most part belong to the commonlaw in which cases the people Elders were to consult the Priests and take direction from them And so Bertram in his treatise de politia Iudaica cap. 9. doth make it manifest prorsus est extra controversiam judices municipales cujusque civitatis ut vocantur seniores suisse chiliarchos centuriones quinquagenarios decuriones tot quot esse poterant in quâque civitate ita ut ex illis Levitae quidam in praefectos assumerentur si modò in ea aliquot erant Levitae sin minùs ex proxima urbe Levitis assignata advocabantur And againe in his cap. 10. David in civili politia dicitur ex Levitis destinâsse Iudices praefectos sexies mille Ex Levitis Iudices praefecti assumpti sunt hac ratione ut primùm essent ex Levitis quidam qui Assessores essent Iudicum ordinariorum municipalium qui seniores dicebantur qui aliquando de plano ut vulgò lequuntur judicarent de rebus levioribus quales erant pecuniariae vel soli vel assumpto uno aliquo ex loci vel urbis senioribus deinde ut essent etiam quidam alij qui judicatas res exequerentur vel certe quod verisimilius est qui assessores erant judicum ordinariorum qui et ipsi de rebus pecuniarijs cognoscerent et judicarent ipsamque rem judicatam exequerentur c. Ex eâdem familiâ adhibiti sunt ad regendam Ecclesiam ad politiam civilem gubernandam ita tamen ut nulla esset utriusque politiae confusio permixtio cap. 11. ad utrumque judicium tam civile quà m Ecclesiasticum adhibiti sunt Levitae in praefectos eodem videlicet modo quo eos ad id muneris designaverat David c. Thus and much more to this purpose Bertram doth often throughout his book deliver his judgement that the Priests and Levites were Iudges in the civill Courts of Iustice and not only in the Ecclesiasticall To this Sigonius agreeth lib. 6 de repub Heb. cap. 7. speaking of the Sanhedrim Inivere hoc Concilium Rex cum principibus populi ac septuaginta senioribus populi Pontifex cum Principibus sacerdotum scribis id est legis doctoribus ut perspicere liquet ex Evangelijs ubi agitur de judicio Christi Voco autē principes populi duodecim principes tribuum qui Regi assidebant
Seniores verò ipsos quos dixi septuaginta populi seniores Quare Ioseph ab Arimath Senator sive decurio Nobilis idem Concilij particeps fuit Siquidem scriptū est ipsum cum caeteris assensum damnationi Christi non praebuisse Principes autem sacerdotum dico illos qui vicenis quaternis sacerdotum classibus seu vicibus singuli singulis praeerant Scribas verò ipsos legis doctores quos Prophetas Iosephus vocavit To both these judicious Abbreviators of the Iewish government the learned Reader for his further satisfaction may adde the late excellent Annotations of C. L' Emperour upon the 11. chapter of Bertram cited before Now seeing David appointed no lesse then sixe thousand Levites for the outward businesses it could not bee but that many of them were imployed in their secular and civill affayres Whereas now there is not one hundred of the Clergy imployed throughout our whole Kingdome there being not above three or foure Iustices of peace in a whole shire The Priests the sonnes of Levi saith God shall come neare or forth out of the cities where they were placed in every tribe and by their word shall all strife and plague be tryed Remembring alwayes that doubtfull and weighty matters were reserved to the Councell of Priests and Iudges that sate in the place which the Lord did chuse for the Arke to rest in If there come a matter too hard for thee in judgement between blood and blood cause and cause plague and plague of matters in question within thy gates thou shalt arise and goe upto the place which the Lord thy God shall choose and shalt repayre unto the Priests the Levites and unto the Iudge that shall be in those dayes and aske and they shall shew thee the sentence ofjudgemene and thou shalt doe according to that which they of the place shew thee and shall observe to doe according to all that they informe thee thou shalt not decline from the thing which they shall shew thee neither to the right hand nor to the left And the man that will doe presum ptuously in not hearkning to the Priest that standeth before the Lord thy God to minister there or unto the Iudge that man shall dye XIX This Councell or Senate of the Elders residing at Ierusalem in Iehosaphats time who no doubt did not infringe but rather observe the tenor of the law consisted of Levites and of Priests and of the heads of the families of Israel and had Amarias the High Priest chiefe over them in all matters of the Lord as Zebediah a Ruler of the house of Iudah chiefe for all the Kings affayres and was a continuance of the 70. Elders which God adjoyned unto Moses to beare the burden of the people with him And this Court cannot be better resembled among us then to our Parliament for there was but one Councell of that nature in the whole land of Iury and that consisting of some of the chiefest of every tribe and they not only debated and concluded the highest affayres of that Realme as warre peace appeales from all places punishments of whole Cities and Tribes and such like but also ruled and rectified all Cases omitted or doubted in Moses law and were obeyed throughout the land upon paine of loosing goods or life or being forever excluded from the people of God as they pronounced or prescribed Thus the Reverend and learned Bishop Bilson in his perpetuall Govern cap. 4. Besides in every city there were private and peculiar Rulers 7. in number as Iosephus saith and also to every Magistracy in those cities there was allotted two of the tribe of Levi for assistance as Iosephus witnesseth and if these could not determine the businesse thenthey did appeale to Ierusalem to the great Sanhedrim Now God appoynted these offices and dignities and power of Iudicature to the Priests and Levites besides their attendance upon Gods service which they might persorme duly intheir courses and yet be helpfull to the Common-wealth in government for they did not neglect their principall duty to attend the sacrifices and service of God and to instruct the people in the law of God together with the duties of Iudicature and Iusticeto be performed in the Common-wealth Yea sometimes the principall Iudges were chosen out of the tribe of Levi as at the beginning of their Common-wealth Moses himselfe the greatest Prophet and Prince that ever almost was among them So after in succeeding times Eli the High Priest was the Iudge in his time so Samuel a Levite And also after the captivity of Babylon for some five hundred yeares till the comming of Christ the Priesthood had the greatest stroke in the government as under the Macchabees wherein they performed their duty very worthily and it pleased God to make that family as victorious as any other almost that ever governed that Commonwealth As Sr Walter Rawlie saith lib. 2. cap. 15. If thus it were among them why then should any in these dayes bee so much displeased that a Bishop or a Clergy-man should have any part in the government of the Common-wealth or assistance of government for the better ordering and directing of Iudgement as to be Counsellour to a Prrnce as Zechariah the Levite was or to be Iustice of peace in the country who handles matters of Equity good Conscience for preserving of publique peace order and quietnes among neighbours wherein happens many businesses that depend much upon the conscience of a Iustice the equitable rules of the scripture whereof Clergy men are the most competent Interpreters As also many causes happen touching the estates and persons of the Clergy who have little reason to be subject only to secular Iudges without some of their owne tribe on thebench to see faire carriage and indifferent dealing XX Besides I cannot omit one passage in a late discourse entitled An Assertion of the Scottish government Wherein the Authour cap. 3. makes his argument for ruling Elders thus Whatsoever kind of Officers the Iewish Church had not as it was Iewish but as it was a Church the same ought the christian Church to have also but the Iewish Church had Elders c. for Elders is not now my businesse but it may be likewise inferred But the Iewish Church and commonwealth had Priests Levites mingled and joyned together with the Princes of thetribes in all civill courts of Iustice and Assemblies of the state therefore ought it to be so now in the Christian Church That it was so anciently among them is sufficiently proved already but especially when busines concerned God matters of religiō then the Priests and Levites were principall and necessary men to be imployed as may clearely appeare by the doings of King David about removing of the Arke to the place that he had provided for it Whereupon King Iames hath written a very pious and excellent meditation pag 81. upon the 1. Chron. 15. some of whose words I will here recite
But because what I have formerly said touching the uniting of the Ecclesiasticall and Temporall Courts may seem strange to many I desire not to bee mistaken as if I perswaded any innovation or change of setled lawes and Courts of Iustice Which would be a thing of dangerous consequence that no wise man will advise but leave all to the wisdome of superiours to whom properly it belongs Only I will adde a few lines touching the auncient forme and manner of government in the Empire after that the Emperours became Christians from whom 't is likely the example was taken both among us and in other kingdomes XXV Touching the division of the Courts temporall from the spirituall though Will: the Conquerour began the separation with us in England yet there was the like done long before even by Constantine the great the first Christian Emperour who first gave leave to the Christian Bishops to meet in Councells and to make Canons to governe the Church Canones generalium Conciliorum ut Isidorus ait lib. 6. Etym. cap. 16. à temporibus Constantini coeperunt Inpraecedentibus namque annis persecutione fervente docendarum plebium minimè dabatur facult as Inde Christianit as in diversas haereses scissaest quia non er at licentia Episcopis in unū conveniendi nisi tempore supradicti Imperatoris Although ever since the Apostles held their first Councell in Ierusalem Act. 15. where they made certaine Canons for the pacification of the Church of Antioch there were also some Provinciall Councels held by the Bishops as the violence of persecutions would permit and suffer them to assemble and the necessity of the Churches did require As may bee seene in the first Tome of the Councells before the great Nicene Councell was assembled by Constantine Who being the first Christian Emperour did greatly labour to setle and advance the dignity of Episcopall government And because he knew well that superiority in the Church without power and jurisdiction was to litle purpose Therefore the good Emperour in his Christian zeale enacted Et si praecipuum Pontificis seu Episcopi munus est doctrinâ verbi populum moderari tamen quia non omnes dicto audientes sunt nec ejusmodi persuasione ad disciplinam perduci vel in officio retinere possunt superiorit as in quasunt Ecclesiastici absque imperio jurisdictione non sat is habet nervorum authoritatis denique quoniam Ecclesia mater cultrix est Iustitie Ideo Episcopis peculiaris quaedam Iurisdictio Ecclesiasticae civili dignior in personas causas Ecclesiasticas legibus Imp est attributa c. ut jus dicant clericis c. And least the Emperour in his Constitution in these words ut jus dicant clericis should seeme to keep short and restraine the Bishops in their Audience or Consistories to Clergy-men only there followes a praterea in the same title in the Code De Episc. audient not long after this praeterea saith the Emperour there Ius dicunt laicis XXVI And as before the age of Constantine for want of power in the Church and the Assistance of the Christian Magistrate the Bishops could not restrain nor suppresse the many heresies schismes that did arise in those first ages most of which heresies were such as were fit to be beat downe by authority rather then by reason and argument they being so impious insolent and blasphemous so after his time when he had setled the Bishops authority yet there being two courts where did arise many differences and debates between the Bishops and the secular Iudges of that time touching cognisance of some causes Iustinian the Emperour made a law like unto that circumspectè agatis of our King Edward 1. agreeing with it in substance of matter and arising from the same ground and pointing to the same end The Novell is thus Si delictum sit Ecclesiasticum egens castigatione vel mulct â Ecclesiasticâ Deo amabiles Episcopi hoc discernant nihil communicantibus clarissimis provincia Iudicibus Neque enim volumus talia negotia scire omnino civiles Judices cum oporteat talia Ecclesiasticè examinari et emendari secundum sacras et divinas regulas quas etiam sequi nostrae non dedignantur leges XXVII And further for the greatnesse of the Bishops authority it will appeare fully if we look upon the lawes as they lye concatenatae in the same title Where it is said of the Bishops Cum sint ordinarij Iudices and againe similes Praefectis Praetorio and further Ordinariè quoque procedunt The linked Texts in that title of the Code as they stand cited doe fully shew the greatnesse of the Bishops Courts and Authority when they are compared and said to be similes Praefectis Praetorio Who were Illustres Iudices and so stiled in the law they being indeed the most supream Iudges in the whole Empire there being but three in that spatious Empire One in Asia Praefectus Praetorio Orientis Another in Europe Praefectus Praetorio Illyrici The third in Africa Praefectus Praetorio legionibus et militiae Africanae These civill Magistrates were respectively Iudges of the Causes which the Emperour had translated from the Empire to the Church which when the Emperour had done and made the Bishops the same Iudges in the Church as the Praefecti Praetorio were in the Empire before it appeares hereby fully how great the authority of the Bishops and their Consistories were wherein they were assisted by their Vicar-generalls whom now we call Chancellours as a learned Civilian observeth who are no upstarts in the world rising out of the Bishops sloath as one though otherwise eloquent and learned mis-called them but had their Originall from the Law it selfe Touching whom I will here say something out of the learned Civilians because commonly their place and Originall is much mistaken by the ignorantly zealous people who doe now abound in the world and thinke nothing lawfull in government unlesse there be expresse text of scripture for it as if no calling government or subordination of Officers in the Church were lawfull but what is expressely and fully set downe in the scriptures and no power or authority left in the hands of Christian Kings and Magistrates to appoint Iudges and Officers for Church discipline as well as for civill Iudicature XXVIII But to returne as the Praefecti Praetorio quia illustres erant et antestabant caeteris dignitatibus ideo habebant Vicarios suos in civilibus causis audiendis et terminandis So were the Bishops then and so are they now Illustres Iudices et antestabant et antestant caeteris dignitatibus in Ecclesia For the Law paralells them in the Church with the chiefe Iudges in the Empire as well in this as in the rest of the parts of their Honour wherewith the Emperour had honoured them and the Law honours them at this day Iustinien's Code hath sundry lawes some of his