The Brutish Thunderbolt, Declaration 1 · Part 27
The third Nullitie by reaſon of the want of iudiciall order.
LEt vsus now come to the third cauſe of nullitie, which we ſaid to be the want of forme & iudiciall order. For as in times paſt the great orator ſaide, what is more vnſéemely, than that iudgement ſhould be giuen of his life and of all his goods, who was neither commanded to be preſent, nor yet cited, nor accuſed? We ſhewed before, that this forme and order of eccleſiaſticall iudgement was appointed by Chriſt and his Apoſtles, in iudging heretikes, firſt, that they ſhould be ſometimes conuict of their error: then if they would not obey not one, but many and often admonitions of the church, but would (as ſaith Auguſtine) ſtubburnely reſiſt, and perſeuere in their error, then they ſhould be counted as enimies and profane perſons. Therefore admonitions are neceſſarie, and a ſolemne and lawful hearing of the cauſe. God was not ignorant what Adam and Eua had committed againſt his commandement or inhibition. Yet he called both of them foorth, and made as it were a queſtion and hearing of the cauſe: and then at length he gaue ſentence againſt them after they were conuict. The ſame God being a moſt ſeuere puniſher of wickednes, was not ignorant with how great and how vile wickednes the Sodomites and Gomorrheans had defiled themſelues. But yet notwithſtanding that he might ſhew an example of equitie to mortall men that are iudges, he tooke vponupon him to heare the cauſe, and he ſaid that he would deſcend and know. Which thing likewiſe the canoniſts hauehave in many words eueryevery where deliuered in 1. q. 2. but ſpecially in c. Deus omnipotens. But moreouer the ſame ſcripture doth in another place teſtifie, that the elders of the people of the Iewes who iudged matters at the foote of the mount Sinay, gaue not ſentence before they had heard both parties, and vntill both parties had laied downe their matter. Moreouer, the Iewes though they did malitiouſly ſéeke to put Chriſt to death, and to deſtroie him, yet they kept the vſual order of iudgements, ſo that they accuſed him before Caiphas the higheſt prieſt, and a competent iudge: and then they did bring him before the iudgement ſeat of the ſame high prieſt, after they had caught him, and alſo they did bring foorth witneſſes for their accuſation. Therefore both ſides laid downe their cauſe: and the opinions of thoſe that ſat with the higheſt prieſt were aſked: and then at length, iudiciall order being kept, the condemnation was pronounced. But what néed more teſtimonies? When the woman was taken in adulterie (as ſaith the ſcripture) as the déed was a doing, and there was none to accuſe hir, and to bring foorth witneſſes, then ſaid Chriſt, Neither Iohn. 8.ſaith he, will I condemne thée being not conuict *. Alſo in another place: when as vponupon a certain day the Iewes would hauehave condemned Chriſt before they had heard him, then Nicodemus rebuked them in theſe words: Doth our lawe condemne anie man before he be heard, and his fact knowen? Finally, there is nothing whereof the olde patrons of the Chriſtians, and amongſt theſe Tertullian, Arnobius, Auguſtine, Lactantius do ſo greatly complain, as that the heathen men did eueryevery where & raſhly condemne the Chriſtians being vnheard, and before their cauſe was knowen. But pope Sixtus and his aſſeſſors the cardinals hauehave followed the raſhnes of theſe Ethnikes in this moſt mad declaration, when as with certaine barbarous and giantlike arrogancie they condemned the foreſaide moſt excellent king of Nauarre, and moſt noble prince of Condie, I do not ſay being vnheard, but not ſo much as commanded to be preſent or cited. But peraduenture ſome man will ſay, theſe Princes were condemned not ſimplie as heretiks, but iointly as notorious and manifeſt heretiks. For they are oftentimes thus called in many places in that furious declaration. But this law is receiued among the canoniſts, that in manifeſt and notorious crimes there néedeth none accuſation and C. manifesta. & ccc. ſeqq. 2. q. 1.iudiciall order *. Wherupon they wil hauehave this concluſion follow, ſéeing the foreſaid Princes do manifeſtly and openly profeſſe, that they are fallen from the ſea of Rome, there néeded no citation or accuſation, or hearing of the cauſe to condemne them. But we may eaſily anſwer this obiection: for the anſwere is thréefold. The firſt is, that the pope taketh that to himſelfe as granted, which the moſt part of Chriſtendome doth ſtoutly denie him, that the religion of the foreſaid princes, and of ſo many other kings and nobles which thinke the ſame thing, is heretical: and that therfore it is an abſurd thing, that thoſe ſhould be called notorious heretiks, which are not euen heretiks. The other anſwer is, that all thoſe points of the decrée of Gratian. 1. q. 1. which can be obiected to vsus, do in no point appertaine vntounto the crime of hereſie: but (as pope Nicolas ſaith *) vntounto the c. 16.works of the fleſh: which (as he addeth out of the apoſtle) are manifeſt: as manſlaughter, robberie, whooredome, inceſt, adulterie, and ſuch like. Neither ſhal there in all theſe places any word be found touching the crime of hereſie: which crime doth differ from the works of the fleſh, and other wicked déeds therein, bicauſe in condemning hereſie the correction and amendement of the perſon is ſought: which Paul doth therefore call foreign, vſing the ſame word or name, which Plato giueth to that chaſtiſement, which is vſed for amendements ſake: for in other puniſhments the amendement of the perſon is not ſought, but there is an example giuen to others, that men with feare of like puniſhment may be terrified from doing euill. For which cauſe the ſame Plato calleth it foreign, or a publike example *. Agell. 6. c. 4. & Plato in Gorg.Therefore though a man wander in ſome article of religion, yea do manifeſtly erre, and ſlide, yet he muſt not foorthwith be either excommunicate, or (as Auguſtine ſaith) be accounted in the number of exerciſing enimies: but he muſt be once and often admoniſhed, chaſtened, taught, neither muſt he be remooued from the fellowſhip of the faithfull, vntil he ſhew himſelfe rebellious and ſtubborne: and (to vſe the words of the ſame Auguſtine) do ſtubbornly reſiſt the Church. Wherfore ſéeing that the foreſaid Princes do neither profeſſe any doctrine, diſſenting from the rule of faith (as we ſaid before:) but do moſt carefully imbrace the fower forenamed councels, neither yet hauehave bin reprehēded by any apoſtolike church: which (as Tertullian defineth it) hath perſeuered in the doctrine of the apoſtles, neither yet hauehave ſhewed themſelues ſtubborne in learning, but if they be conuict of any error are readie to amend it: we conclude without any delay, that we hauehave abundantly ſatiſfied the cauſe of Nullitie ſet down by vsus in the third place. To what end ſhould I vſe many words? For euen by the law of the canoniſts all this declaration of the pope is prooued to be vniuſt and void: forſomuch as when an excommunication is ſent out for no iuſt cauſe, and without obſeruing the iudiciall order, then the curſe of the excommunication is ſaid to redound vponupon the head of him that accurſeth. Touching an vniuſt cauſe, there be teſtimonies extant in the writings of Auguſtine *, where in c. temerarium, eodem.he thus writeth: Raſh iudgement doth for the most part hurt him nothing, vponupon whom iudgment is raſhly giuen, but him that iudgeth raſhly must the raſhnes of neceſſitie hurt. Alſo in the chapter following: What doth it hurt a man that mans ignorance will blot him out of that table, if ſo be it an euill conſcience do not blot him out of the booke of the liuing? Thinke of Augustine what thou wilt, onelyonly let not my conſcience accuſe me in the eies of God, &c. Etſi, theſe things are cited out of the ſame Auguſtine: Though thou bee condemned of man for a time, the earthly ſeat is one, and the heauenlie throne another thing: from the lower he receiueth ſentence, from the higher a crowne. Alſo out of the ſame Auguſtine: *11. q. 3. c. Epiſcopi, c. nemo. c. certum, c. ex parte, cap cum olim. De ſente. excom.I in c. illud planè.will ſay that boldly and not raſhly, that if anie of the faithfull ſhall be vniustly accurſed, it ſhall rather hurt him that doth, than him that ſuffereth this iniurie. For the holie Ghost dwelling in the ſaints, by whom euerie man is bound, or looſed, doth not puniſh any man vndeſeruedly. But in iudiciall order is required firſt citation, then the ſtubbornnes of him that is cited *Host. in ſum. tit. de ſent. excomm▪ num. 7. gloſſ. in c. ſtatuimus codem tit. in 6.. As for example, ſaith Hoſtienſis, if any man being commanded or admoniſhed will not amend his wickednes. *cap. ad noſtr. De conſuet. vbi concord. in gloſſ.Furthermore it is requiſite that the excommunicator be a competent iudge: otherwiſe the excommunication of an inſufficient iudge is none *c. ſolet. &c. venerabilem, & per tuas eod tit. in 6.. Thirdly, if the excommunicat perſon hauehave lawfully appealed, or in ſtead of appealing hauehave fitly proteſted *. For he that alledgeth no ſentence, though he deſire not to be abſolued, but (as it falleth out in this matter) ſhewing lawful cauſes of Nullity, eſpecially ſo many, and ſo lawfull, he muſt be heard: and in the meane ſeaſon the ſentence is ſuſpended, as the ſame canoniſts do commonly teach *in d. c. per tuas. & in d. c. ſolet.. In like ſort if the ſentence containe an intollerable error: as the ſame canoniſts affirme *in d. c. ſolet. in d. c. per tuas.: as in this matter of ours, where the bull of pope Sixtus is conuict of moſt manifeſt errors: as is ſhewed in the laſt cauſe of Nullitie, eſpecially where the ſentence doth manifeſtly contain the error of the fact: as Auguſtine *in Sum. contra gloſſ. in d. c. per tuas.noteth. For a ſentence pronounced according to falſe allegations is in law none: as we prooued before at large.