omnes consuetudines regis sicut caeteri Barones debent interesse iudiciis regis cum Baronibus Now the Bishops especially since the reformation are ready and willing not onely to take the oath of homage which some denyed heretofore as Thomas Becket and Glanvill who was the chiefe Iustice seemes to countenance it by saying Episcopi consecrati non solent Domino Regi homagium facere de Baroniis suis Glanvil lib. 9. cap. 1. sed fidelitatem The present Clergy I say is not onely ready to take the oath in the old favourable free forme salvo ordine but as it is now more strictly obligatorie by putting in these words in verbo veritatis and leaving out the former Which oath may be taken without any suspicion of Symonie as Panormitan Homagium vel fidelitas ab Episcopo praestari possit citra periculum Symoniae and Cajetaine the learned schooleman doth in this agree with this ancient able Cannonist Cajetan in secund secunde q. 184. art 5. Episcopus legitimè iurare potest Homagium quoddam vel fidelitatem quia nil in isto iuramento continetur circa curam animarum for that is taken in relation to their temporalls which they haue from the Kings favours not in relation to their consecration which they haue from the qualifying grace of God which was well expressed anciently in their stile Dei gratiâ Episcopus and now by providentia divinâ so that seeing they perform the same services they may enjoy the same priviledges with the Barons Now as all priviledges so these that they enjoy common with them are besides and aboue the common course of law For instance as they are Assessors in Parliament they may appeare by Proxie as they are witnesses they may sweare onely Visis Evangeliis verbo sacerdotis as Barons by their honour and when they are at any time Delinquents they should bee tried by their Peeres if they were tried as Bishops and not first degraded and so some haue beene tried vntill one appealed from them to the Pope And good reason in those dayes they had if not now to bee so tried because many of the Bishops of those times were of the Princes of the nobilitie as may be seene in Bishop Godwins Catalogue of Bishops so that when Peeres were Bishops why should not Bishops bee Peeres It seemes in Richard the seconds dayes they were so accounted for when hee did make vp the number of the twelue Peeres of the land he chose Brentingham Bishop of Exeter one of them which I conceiue hee would not haue done if hee had not beene a Peere before and I am the rather perswaded so to thinke because Richard the second extends the statute of Scandalum magnatum to Bishops as well as Dukes 2. Rich Earles and Barons vnder the title of Peeres of the land Besides these priviledges which they haue as they are Barons the Kings of this land haue beene pleased out of their Princely favours to bestow many freedomes vpon them especially on the Archbishop of Canterbury as amongst other ordinary and knowne Stamfoâ— rogat c. one against his Majesties written prerogatiue as that the land held of that Bishop shall not be Ward to the King And I beleeue the high estimation of that See abroad might mooue them to it for they are not onely stiled Primates of all England and Metropolitans Duarenâ— gradibus cap. 9. Laelius Zâ— statu Leg but Patriarches Patriarchae minorum gentium sunt Cantuariensis Aquiliensis Biturgiensis Gradensis and the most lawfull Legats of the Apostolicall See Legati nati dignitas Archiepiscopatui Cantuariensi Remensi Eboracensi Pisano annexa est This forraine respect might mooue them more particularly to honour them though they haue alwayes most highly favoured Bishops in generall in somuch that they haue made them not onely á sacris but à secretis which is safe for a King and no distraction to a Bishop in his calling Lipsius Aâ— 3. Polit. with Lipsius limitation interesse eos posse imò debere sed rarenter cùm de rebus planè seriis agitur quae tangunt vniversâ—â— statum then should not Princes need to forbid Bishops the Court without they were sent for as Baronius saith Iustinian was faine to doe Thus I haue brifely discoursed Baron Aâ— Anno 528 though not fully discovered some thing of the relation betwixt the state Ecclesiasticall and the Civill which I haue done without advising in any thing to an alteration or devising any thing for innovation and with submission to the licence of authority and the judgement of the learned FINIS
is the prohibition that is lawfull as for a prohibition of fact which is by a sophisticall suggestion sucked and squeezed out of the copie of the libell without judgment of the Kings Courts vpon it in my opinion is not right and is many times the cause of wrong either in vnjustice or delayes yea and in abusing of the Statute with the Kings Courts For the prohibition of law the most I conceiue it inferres is to make all the proceedings voide Coram non Iudice But if I might know what degree and quality of offence it is for a Court temporall to hold plea of a meere Ecclesiasticall cause I should more easily apprehend the scandalous nature of the ground of a prohibition which it may be is the same with a writ of errour in the temporall Court since that a consultation doth not ensue vpon that but after a prohibition grounded vpon a suggestion So then all the proceedings of these Courts haue their power from this last act of supremacie as well in primatiue processes of inquisition as in punitiue processes of execution As this authentick authoritie is most seene in the proceedings ex officio which are not onely nor alwayes by oath as many are mistaken These are by immediate commission where an Ecclesiasticall cause is criminall and prosecuted as criminall And so also the vtmost punitiue processe Ecclesiasticall which is a writ de Excommunicato capiendo is evidently derived from the Kings power and issueth immediately from his favour to the Church that it may be more easily obeyed Iohan. de Paris de Potestate Reg. Concl. 1. and is divers and variable in sundry governments and executed by temporall power being nothing of the nature of the spirituall excommunication but an accession concessâ permissione ex devotione Principum as Iohannes de Parisiis saith against Boniface the eight As for the judgements of Bishops consistories as they are derived from the power and law of Christ the great Bishop so they are like the judges of them who are rather arbiters amicabiles compositores as Panormitane then Iudges ruling by the austerity of authority so that poore defendants may flie to them as to their altars who are Ministers of the altar and in this sense that which Architas speakes is most true Arist Rhet. lib. 3. c. 11. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem esse arbitrum Aram. And though they haue no forcing power but from the King and no power of any force against the King yet the greatest and best Kings haue yeelded to them in their advice not as Prelates but as they are Fathers in God as Alexander the great said to his father King Philip 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Chrysost 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 farre vnlike the Bishops of Rome who will rule the highest Princes and yet professe themselues servants of servants which makes mee call to minde the observation of the wisest King Salomon Proverb 30. that one of the chiefest instruments whereby the earth is shaken is a servant that rules over Princes And as they vsurpe rule so they vsurpe the sword of temporall Princes and carry it in the spirituall scabbard and drawing it doe more hurt in their passion then they can help by their priviledge when as they found it soberly and orderly put up by St Peter when Christ was at his elbow to heale the greatest wound that hee could make Thus is it somewhat plaine how Ecclesiasticall power is derived from the King as hee is supreame head in lawfull and full authority over all causes and persons which double power in my conceit the custome of the ancient Persians at the death of their Monarch doth fully and fitly expresse for the lawes are silent Brisso◠Regn◠lib. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their holy eternall fire which every one worshiped in his private house as his houshold god was put out when the Emperour died § 4 The next thing which I promised to declare was how the honour of the state Ecclesiasticall is annexed to the power by the Kings lawes and royall prorogatiue The honour of the Clergy is contained in revenewes and priviledges 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A◠lib. 1. which are vnited to their powers of order and jurisdiction which powers although we should grant that simply considered in themselues they are not distinguished jure divino yet I am sure none will deny that they are distinct quoad extensionem permissione approbatione divinâ as Iohannes de Parisiis doth distinguish the power given the Apostles into six parts in respect of so many severall acts of execution the fift of which is potestas dispositionis ministrorum secundum quosdam quoad determinationem jurisdictionis Ecclesiasticae ut vitetur confusio Ioh. de cap. 1 And as they are thus distinct according to the execution and stand so confirmed by the positiue lawes of the land so they haue distinct portions and priviledges according to the same lawes yet after a different manner especially in respect of the portion For the power of order which hath maintenance of diverse kindes as tithes oblations Gleabland and mortuaries holds them all according to the lawes of this land as due to the Clergie for executing the power of order but by different acts of these lawes as Mortuaries are permitted and Gleablands granted Tithes and Oblations confirmed and all constrained to be paid Now tithes that are onely confirmed by the Kings positiue lawes are supposed to bee due by some other law of higher nature then the Kings which is not any forraine law Bellar. de Cler. lib. 1. cap. 10. as Ius Ecclesiasticum as Bellarmine calls the Cannon law it must bee then by law divine or immediately arising from supernaturall and morall considerations which law we grant to be positiue yet not meerely humaine Hooker Eccles Polit. l. 1. §. 15. nor changeable in respect to us and they must necessarily runne into many grosse errours that take onely such lawes for positiue as are invented by men and thence conclude them mutable And therefore I presume that the learned Selden doth so vnderstand the positiue law by which hee holds tithes to be due not in opposition to divine and morall but as specially diverse from it as it partly appeares in the whole drift of his history where I doe not beleeue that any can finde that hee ever delivers his judgement denying them to bee jure divino so that in my apprehension and I hope not against his intention he may doe the Church much good in his relating what wrongs the Clergy in all ages haue sustained For his history is onely de facto what hath beene done hee giues not his judgement de iure what ought to haue beene done which if he had he would assuredly haue pronounced for them and this I am forced to beleeue when I consider his exact generall knowledge and the reverent respect he beares to
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