owne some of the Emperours before him even from the dayes of Constantine the great which shew that Bishops in their Episcopall Audience sate not without their Chancellours although their Chancellours sate often without the Bishops whose higher charge in Christs Church permitted not the Bishops presence in Court causes ordinarily And though not under the name and title of Chancellours nor alwayes Vicars Generalls Officials nor Commissaries yet they had other titles but the same offices Ecclesiastici or Episcoporum Ecdici as much as to say as Church-Lawyers or Bishops Lawyers professed Civilians and Canonists of that age the very selfe-same Officers and Office that the Bishops Vicar-generalls then were and now are Who together with the Bishops then made and doe now make but one and the same Tribunall and Consistory their Commissions they held from the Bishops but their Iurisdiction from the Law And the cause why the Imperiall power furnished the Bishops with these Officers was the multitude and variety of Ecclesiasticall causes more in that age then now the decisions whereof in their Consistories being left to the Bishops the Emperour doubted might have drawn them from prayer and divine exercises And a second reason was that the cause of the cognisance of their Courts weremore likely to have thereby a more speedy ready and Iudicious triall before Iudges of the same learning which require a whole man then before Iudges of another though an higher requiring as the Bishops pastorall office doth a whole man too And a third reason also may be added Because that clerkes suits and quarrells should not be divulged and spread abroad amongst the secular sort which trenched many times upon the whole profession especially in Capitall matters wherein Princes aunciently so much tendred the Clergy that if a Clerke had committed an offence worthy of death or open shame whereby he became perpetually infamous hee was not first executed or put to open shame before hee was degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerke but as a laymalefactour for the Honour and dignity of Priesthood It were to be wished this order were retained still that Clerks should not passe immediatly when they fall into such excesses from the Altar to the halter but hang or suffer other shame without their Priesthood which order if it were retained still or might be restored would much honour the Church and no whit derogate from the Iurisdiction of the Crowne But this and whatsoever else is said here I submit to the censure of superiours A DETERMINATION OF A Question made by the right Reverend IOHN DAVENANT late Bishop of SARUM QUAEST. 11th Civill Jurisdiction is by right granted to Ecclesiasticall PERSONS IT is by the warrant of Christ himselfe that the Church doth claime and execute a spirituall Iurisdiction in punishing the offences of her children For it can admit an accusation against the inordinate courses of any Christian and hath power to chastise him being by sufficient witnesses convicted either by him the sacraments or if he continue obstinate in his wickednesse by an utter exclusion of him from the fellowship and communion of other Christians I know none so malignant or unskilfull in Ecclesiasticall affayres that will deny this Authority which indeed goes not beyond Excommunication to have been conferred on Church-men from the beginning by divine Institution But in this our Church Christian Princes have furthermore allowed the Clergy temporall authority by vertue whereof they inflict civill punishments on Heretiques Schismaticks and other despisers of the Church As also many sage and grave Divines are in divers places endowed with the publique power of Iustices of Peace Concerning this Iurisdiction let us enquire whether it may lawfully be granted to Church-men which that it may lawfully be done these following Reasons have induced me to believe It is first to be considered thatboth these Iurisdictions tend to the same end of promoting Iustice and bridling vice but with this difference that that power which is meerly spirituall makes use only of spirituall means whereas the weapons of civill authority be coactive and externall as Imprisonment Fines and corporall punishments Here therefore would I know why it should be esteemed a wicked and unlawfull act not suiting to the holy function of a Priest to correct Hereticks Schismaticks and other vile and notorious disturbers of the Christian Common-wealth's Peace as well with civill and bodily chastisements as those of the spirit where Power is given them so to doe To resist and pull downe vices by either way is a good and plausible action and of it 's selfe misbeseeming no Person though never so holy The blessed Angellsof Heaven deeme it a thing in no wise contrary to their sanctity in the name and command of God to smite the prophane with corporall Punishments Why then should the Angells of the Church thinke it not lawfull to adjudge the same delinquents to any deserved punishments when by the decree of their Soveraign Gods Vice-gerent here on earth it is so determined For the Execution of civill Authority is not of it's selfe repugnant to any Person how holy soever nor disagreeing to the office of Priesthood Againe the high and absolute Power of the Giver perswades me that Church-men doe by good right exercise this Iurisdiction For the King being by God's appointment the Fountaine of all civill Authority may without offence derive some rivelets thereof to what Persons he shall thinke fit whether Lay or Ecclesiasticall I said but some rivelets because though no Temporall office by Gods lawes are forbidden the Clergy wisdome and equity permit not Kings so farre to burthen them with state affaires as wholy to divert them from their spirituall Function This Power therefore is so to be entrusted to them as it may be an Ornament or Furtherance to the Church government no hinderance or obstacle thereunto But it is not for every vulgar judgment or envious Peece to determine how farre this Iurisdiction is to be granted to the Clergy so that it may helpe and not trouble them in their Ministery But what Aristotle the life of Philosophers said concerning the Meane in vertues that it is so to bee order'd {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} as the wise man shall think fit May be applyed to this Temporall Iurisdiction that it is so farre to bee communicated to Church-men as a Iudicious and wise Prince shall thinke convenient Seeing then it hath pleased Christian Kings to arme the Clergy with some civill Iurisdiction and ordaine that to the greater improvement of Christianity and casting downe of wickednesse they should exercise both Ecclesiasticall and civill Iurisdiction it is most apparantly lawfull and pious and plainely necessary by the ayde of both Iurisdictions as with a two-edged sword to preserve piety and the Peace of the Church and cut of it 's Opposers 3ly Because to many it seems unfitting the successours
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 à priscis feodalibus Baronibus orundi suam hodiè praescriptione tuentur dignitatem 2. Evocatos seu Rescriptitios qui brevi Regio evocantur ad Parliamentum 3. Diplomaticos qui Regio diplomate hoc fastigium ascendunt Feodalium origineminter eos collocavero quibus Willielmus senior Angliam totam dispertitus est de se tenendam quorumque nomina in Domesdei paginis recognovit Rescriptitios ab aevo Regum Iohannis Henrici tertij caput extalisse censeo Diplomaticos initium sumpsisse perhibent sub Richardo secundo qui anno regni sui 8. 1. Christi 1387. Iohannem Beauchampe de Holte in Baronem de Kiderminster suo erexit diplomate Now the Bishops may be reckoned both as Feudall Barons in regard of their estates and Baronies annexed to their Bishopricks And also they are Evocati summoned as Barons and principall persons by the Kings writ unto Parliaments But so were not all the Feudall Barons quorum ingens erat multitudo quae plus minus 30000. millia nullo lecto convocari poterat Saith the learned Antiquary page 79. And as not all the Feudall Barons so not all the Abbots and Priors but a convenient number sometimes more and sometimes lesse as in 49. Henr. 3. there were called to Parliament one hundred and two besides five Deanes Anno 1. Ed. 2. there were 56. Abbats Anno 4. Ed. 3. about 33. and at other times more or lesse yet not so few as the Examiner relateth out of Sr Ed. Cooke page 33. who though he wereagreatmaster of Law yet in matters of Antiquity must yieldtothe Authour of the Glossary Whom you may consult page 4. VII The Examiner might have done well to have observed this distinction and difference of Barons it being extant so long since before he had taken the boldnesse to talke so poorely of the Baronies of Bishops to whom William the Conquerour did not adde much to endeere them For he restrained them in many things using the power of a Conquerour and took away much from them For before his time they had part in fines and mulcts and power of coyning money as appeares by the lawes of king AEthelstan de monetariis pag. 399. and many other places But these were soone after reserved to the Crowne as principall prerogatives And till the councell of Clarendon under Hen. 2. the Clergy and Bishops enjoyed many more freedomes and priviledges which then were abated and much diminished about which contention Thomas Becket opposed the king which the learned Glossary sheweth page 82 Episcopi autem barones dici videntur propter nominis dignitatem non quòd vassalagium pendebant aut seculare servitium Hoc enim nostratibus jugum injecit amnium primus Willielmus senior An. Grat. 1070 ut in eodem tradit Matth. Paris Auxit magnopere Willielmus junior ut in historiola Ducum Normania in LL. Edwardi confess c.11. Sed post varias Collectationes aterno rebore domùm confirmavit Henr. 2 Anno Dom. 1164. in magno concilio Clarendonia habito praesidente eidem ex ipsius mandato sacellano suo Iohanne de Oxonia praesentibusque Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Regni in hunc tonorem So that the Bishops besides that they are called by the kings writ to Parliament and thereby have the same right that others have yet since the Conquest they may be reckoned also among the Feudall Barons 〈…〉 ejus in respect de leur possessions S. L' auncient Barones annexes a leur dignites Whereas therefore the Examiner saith pag. 45. albeit the Bishops are usually said to hold of the king per Baroniam Yet this happily may be meant rather of the Honour affixed to their plaees which works it up into a dignity then of the lands pertaining to them This is but grosse ignorance for like feudall Barons suas sortiuntur Baronias solâ fundorum in vestitur â. In like manner I take it as the Earles of Arondell both formerly and of late being possessed of the Castle of Arondell Honour and Seignory without other consideration or creation to be an Earle became Earles of Arondell and the name state and Honour of the Earle of Arondell peaceably enjoyed As Cambden relateth out of the Parliament Rolls in Sussex VIII Further the Examiner saith that the Bishops ought not to have the same legislative power as the Temporall Barons because these are for their sonnes and heires and the others for their successours only This objection is frivolous because the Bishops are as carefull for the preservation of the publique wherein standeth the safety of themselves and their successours as any Temporall Lords can be and perhaps the more because temporall Lords doe often fall into great wantand poverty selling sometimes thevery head of their Baronies and so may become very obnoxious and also ambitious to recouer and rayse themselves to higher Honours titles or offices whereas the Bishops move not much higher though they may get a better Bishoprick which is not so great a temptation asto make them forget themselves or the trust reposedin them but rather layes a greater obligation on them IX Lastly whereas the Examiner saith the Bishops are Barones eleemosynarij and would thence inferre that they are but as arbitrary almsemen like the poore Knights of Windsor which may be abated or taken away at pleasure This is but a spightfull inference upon the bare word eleemosyna without the truesense of it For as the learned Glossary sheweth Barones eleemosynarij apud Stanfordum in jure nostro dicuntur Archiepiscopi Episcopi Abbates Priores qui praedia suae Ecclesiae à Rege tenent per Baroniam Baronias enim suas ex eleemosyna Regū perhibentur accepisse licèt ipsa praedia aliorum saepe munificentiâ consequuti fuerint And sometimes not only by the gift of other noble persons but also themselves did buy and purchase many Mannours and Lands conferring them on their successours being so bought they cannot in justice be taken away as if all had been given by the King and others as meere almes X. Further it is not to be forgotten that the Kings and Benefactours who gave lands didlay heavy burdens curses and imprecations upon any that should everattemptto alilenate thē And touching the nature of these curses and imprecations when lands are thus devoted unto God much might be said to affrighten any one from attempting it Levit. 27. 28. No devoted thing might be sold or redeemed every devoted thing is most holy unto the Lord For when things are once promised consecrated and confirmed unto God it is not afterwards lawfull to take them away as peter told Ananias Acts 5. Who had given or at least made a shew to give
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