A Discourse of the Ecclesiastical State of this Kingdom, Conclusion 3
THE THIRD CONCLVSION. That all the rights and reſpects that the ſtate Eccleſiaſticall enjoyes or deſires are originally derived from their relation and dependance on the Civill.
HE that hath publique power and an opportunitie to doe a great good turne for endearing a private friend that depends vponupon him, will hauehave much adoe to forbeare to doe it, though the weale publique ſuffer ſome detriment by it. Yet if his friend doe ſo much tender the publique good, that he will not deſire any thing to the prejudice of it; ſurely then the publique perſon out of his engagements and reſpects to the publique good, will leaue off his preſent purpoſe and pleaſure his favorite in ſome things that may doe him good, and the Common-wealth no harme. Even ſo our ſupreame Regent of great Brittaine, hath great and tranſcendent power, and never wants an opportunitie to doe good, & beſtow favours vponupon the well deſerving ſtate of the Clergie; and it were impoſſible for him to hold his royall bountifull hand, if this Clergie ſhould not in all its petitions; conſider the publique good, apprehending it ſelfe as a member of the Civill ſtate. And hence it is, that though the King hath more power then I beleeue was ever tried, or can be defined, to doe his Clergie good, yet they hauehave not any thing conferred vponupon them; which is not according to the lawes, cuſtomes, and liberties of this Common-wealth. All that the ſtate Eccleſiaſticall enjoyes, belongs to it as to a principall member of the body politique; and is derived to it from the ſupreame Civill head on which it doth depend, and in whom it is vnited to the Civill ſtate. It is no debaſing or derogation to a ſpiritualitie, to bee thus ſubject to the Dominion of a ſacred Soveraigne; for though ſervitude according to the Civilians proceed not from the law of nature, but of Nations, or at leſt from nature corrupted, (as the Schooles) yet orderly ſubjection and ſuperioritie proceed from the inſtinct of pure nature: for in Heaven there is order amongſt the bleſſed Angels, and in the ſtate of innocency there was ſuperiority, not onelyonly betwixt man and all other creatures, but alſo betwixt man and woman; and had they lived in Paradiſe till there had beene father and ſonne, there ſhould hauehave beene Patria poteſtas, or elſe the fifth Commandement is not morall: and when there had beene many families, there muſt neceſſarily hauehave beene Regiae poteſtas, or elſe the beſt and moſt happy life muſt hauehave beene without the greateſt happineſſe of life, which is order. Now the ſuperiority of our Prince over his Clergie is not an enſlaving tyranny, but a ſweet and a lawfull Soveraigntie, which government as it is due, ſo it is our duty to obey it; for government and obedience are relatiues of equall extent. And as it is no diſparagement to the ſtate Eccleſiaſticall to bee ſubject to our ſupreame Magiſtrate, ſo it is great benefit to the Clergie, and a ſatisfaction to the Laytie, that all the rights and reſpects that they enjoy or deſire, are deriued from that Prince whom both ſo willingly obey.
§ 2 All that the ſtate Eccleſiaſticall doth enjoy or claime, may bee reduced to theſe two heads; of power, and of honour: and they deriue theſe from one ſole ſupreame governour, who is fully qualified by his perſonall eminent authority, to transferre and conferre theſe rights and reſpects to them, and vponupon them: for as theſe two 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 hauehave not Eccleſiaſticall government, and that becauſe many giuegive 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 vponupon 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 hauehave 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 hauehave 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 onelyonly 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 hauehave 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. 5The Kings of Spaine in Caſteile hauehave 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 vponupon 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. 4abſque 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 depend vponupon 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 vponupon 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 hauehave 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 hauehave beene ſo fully and faithfully informed of the ancient power and priviledges of it, as to thinke of reſtoring them, ſeeing not onelyonly 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 vponupon 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 vntounto it, with the Parliament; for though it was no reaſon, that it ſhould hauehave 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 hauehave 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 hauehave 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,Florebe… rat. ad Marian he ſuppoſed their power to decree it, which he would not hauehave done, if hee had held it to be a meere temporall Court; and he muſt neceſſarily hauehave 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 hauehave, 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. He… (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 capacities of government in him, the one ſpirituall, the other temporall, by both theſe hee hath ſupremacie, and this ſupremacie is chiefly exerciſed in the calling, preſedencie, and diſſolving of the great aſſembly of the three States, which high Court is not competently correſpondent to both thoſe powers in the King, vnleſſe the Parliament conſiſt collectiue of ſpirituall and temporall perſons, which it hath anciently (if the Booke De modo tenendi Parliamenti be authenticall) for hee makes the vpper Houſe conſiſt of three States, the Kings Majeſtie, the Lords ſpirituall and temporall; and lower of the Knights,Ridleys view of Eccleſiaſticall Lawes. Procurators for the Clergie, and the Burgeſſes; which both anſwer the Kings mixt ſupremacie. So that as he is ſupremus Iuſtitiarius totius Angliae, in relation to the temporalitie; ſo he is ſupremus, or (as Conſtantine truely entitled himſelfe in the Councell of Nice) foreign,Euſebius in vita. lib. 3. in reſpect of the ſpiritualty. But to returne to my preſent promiſe, and purpoſe, which was to ſhew how the actes of ſupremacie hauehave their effects in the Eccleſiaſticall juriſdiction, derived to the Clergie: And I am now to ſhew, what effect the power of promulgation of lawes hath, which is in conſenting, confirming, and publiſhing the Eccleſiaſticall Lawes which are agreed vponupon in Convocation (not excluding the advice of the Parliament, becauſe the State Eccleſiaſticall is not an independant ſocietie, but a member of the whole:) hence it is, that they are called the Kings Eccleſiaſticall Lawes, by which the Clergie is ruled in ſpirituall cauſes, according to which they exerciſe their juriſdiction in foro exteriori & contentioſo; hence it is, that for this laſt age, the Eccleſiaſticall Lawes of this Realme hauehave ſo well agreed with the Civill, becauſe they paſſe not without the aſſent of the ſupreame governour. And it were much to be deſired, that Chriſtian Princes would not onelyonly permit lawes to be made, and giuegive force to them by their authority, but alſo that they would vouchſafe their perſonall preſence, to be Preſidents in all aſſemblies for that end, for then they would proceed and conclude to better purpoſe. As Iſidorus Peluſiota writes to the Emperour Theodoſius the younger, to be reſident and preſident in the Councell of Epheſus: foreign: which is, that if hee would be pleaſed to take ſo much time, as to be preſent there, he did not feare, that any thing that ſhould paſſe, could be faultie; but if he leaue it all to be done by turbulent ſuffrages, foreign;Iſiodoru… luſ. lib. 311. Who can free that Synod from ſcornfull ſcoffings? his counſell was ſafe and ſeaſonable, becauſe the cauſe of feare was very probable and eminent. For in a Councell, where there is a Monarchicall authority, a ſupreame power in one, there will be more diſpatch in deliberations, more expedition in executions, than where multitudes of equals ſit alone, for they will be many of them over-wiſe, and moſt over-wilfull to agree in one poynt; when as every ſingular perſon will broach his particular project, and propoſe it as a publick law, with reſolution to be a recuſant to all their lawes, if they will not be Proteſtants to his: and ſo it comes to paſſe too often, that they are forced to yeeld to one another, or elſe no law ſhould paſſe. Hence is that multiplicitie, vncertainty, confuſion & contrariety of lawes in ſome diſeaſed States, than which nothing diſcovers a State to be more deſperately declining, though they are good in their particulars; for they ſhew the multiplication of ill manners, which per accidens begot them, and they are likely to make them worſe, becauſe they being appointed to amend them, are diſappointed and diſabled by their owne croſſe contrarieties. As in a naturall body, over-growne and over-flowne with ill humours. If a Philoſopher that conſiders onelyonly a body neither ſick nor well, giues that which is good. foreign foreign, (as Hippocrates calls it) and when he hath done an Emperick come that conſiders it as ſick, but he knowes not of what, nor the temper of the conſtitution, but boldly and blindly giues one medicine to all, for all diſeaſes, and at laſt the judicious Phyſitian come and conſider it as it is, and know what to doe, hee muſt firſt vndoe all the other hauehave done, before hee dare adminiſter that which ſhould firſt hauehave beene taken, and by this time, the body is either paſt cure, or deſperate concluſions muſt be tried to recover it. Therefore happy is our State Eccleſiaſticall, in whoſe Convocation our ſupream Soveraign is Preſident, ſo that the Lawes paſſing with his royall conſent, are certaine, and eaſie to be obeyed, by reaſon of their rareneſſe and paucitie, which makes them pertinent, diſtinct, and free from confuſion. And therefore I doe not a little marveile at learned Baronius, Baronius Annal. Anno. 528.that ſince hee doth not deny Iuſtinianus the Emperour the power of making Eccleſiaſticall Lawes, he ſhould ſo ſcrupulouſly and buſily inquire, what ſhould moue him to meddle with the making of them; when as I doe not doubt, but the Clergie then might requeſt him to it. This laſt act of ſupremacie, is to receiue appeales, and giuegive determinate deciſions, and this hath its effect, and is exerciſed in the Eccleſiaſticall Courts. And they doe not exerciſe any power, that is not derived from this ſupremacie, either immediately, or mediately. So that as the lawes they execute, are the Kings Eccleſiaſticall Lawes, ſo theſe Courts are the Kings, and all the proceſſes and courſes approved by his Majeſties Lawes. Therefore now there is no ground for a praemunire in them, though the words of the Statute runne (to Rome or elſe-where) for by (elſe-where) ſeemes to be meant, the Romiſh power,Babylonem… Gallicam, vt Petrarch. epiſt. 123. or Court, which was not then at Rome, becauſe the Popes ſeat was then at Avignion in France, and not our Biſhops conſiſtorie: For I beleeue, that Statute was made to free them as well from the forraine vſurpation, as any other of the King Courts, as the pragmaticall ſanction of France doth, which was of the nature, and in imitation of it about the ſame time, by Charles the ſeventh, brother-in-law to Edward the third. But however it was then meant, I am ſure it cannot extend to them now, vnleſſe wee will deny the Kings ſupremacie over all cauſes and perſons Eccleſiaſticall; and then they are not the Kings Courts; but if we grant the Kings ſupremacie, wee muſt deny that any of his Courts can incurre a praemunire. A prohibition, I grant, may lawfully lye there, becauſe it is ſafe for the whole State, that every juriſdiction ſhould hauehave its bounds, and keep, or be kept in them. But yet I will not ſay ſo in generall, but we muſt admit them with diſtinction of prohibitions, one of Law, another of Fact. Now that prohibition which is of Law, according to the expreſſe words of the Statute, (which are commonly large enough) 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 vponupon 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 vponupon that, but after a prohibition grounded vponupon a ſuggeſtion. So then, all the proceedings of theſe Courts, hauehave 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 onelyonly, 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. foreign, Idem eſſe arbitrum & Aram. And though they hauehave no forcing power, but from the King, and no power of any force againſt the King; yet the greateſt and beſt Kings hauehave 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) foreign:Dion. Chryſoſt. foreign. 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. foreign, yea and their foreign 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,foreign 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. 1And as they are thus diſtinct according to the execution, and ſtand ſo confirmed by the poſitiue lawes of the land; ſo they hauehave 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 onelyonly 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 onelyonly 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 hauehave ſuſtained. For his hiſtory is onelyonly de facto, what hath beene done; hee giues not his judgement de iure what ought to hauehave beene done, which if he had, he would aſſuredly hauehave pronounced for them; and this I am forced to beleeue, when I conſider his exact generall knowledge, and the reverent reſpect he beares to authentique antiquitie. I doe not in this confeſſe that they are not iure divino, becauſe I affirme not them to be due by the law of Moſes, that is no direct conſequence vponupon my propoſition; for not onelyonly the judiciall law which was the commend, and I beleeue in moſt points is ſtill the counſaile of the moſt wiſe God (eſpecially in this particular where the ground of the command is morall) doth proportion a tenth part as neceſſary then to be paid; and though the ſame neceſſity binds vsus not now, yet the correſpondencie of the conveniencie (as I conceiue) doth hold vsus as ſtrongly to it as it did that ſtate. For I ſee no inconvenience in tithes-paying in our ſtate more then in theirs, but onelyonly they were brought home vntounto Prieſts (which onelyonly exception Mr Cartwright makes againſt tithes:Annot. i… Teſt. 7.) But I ſtand not onelyonly vponupon this, but I am alſo partly perſwaded, that they were confirmed by Apoſtolicall approbation, though it bee not in expreſſe words ſo ſet downe. For though the Apoſtles did all preach the Goſpell, yet they did not all write, neither did thoſe that did write commit all to writing which they did teach:2 Theſ. for St Paul adviſeth the Theſſalonians to keepe the traditions they had beene taught either by word or epiſtle. And therefore it is freely acknowledged by a famous Orthodox divine of our owne, non omnia eſſe ſcripta in libris voteris & novi Teſtamenti, Whittak… Bellar. q… cap. 6.quae Apoſtoli aut docuerunt aut fecerunt; ſed fatemur Apoſtolos ritus & conſuetudines ſanxiſſe, non autem ſcripſiſſe; hence it is probable, that they might by conſent confirme them, becauſe it was not onelyonly a cuſtome and a law then in force, and they did not delight to innovate, but vponupon neceſſitie: but alſo becauſe we doe not finde one word of their abrogation or alteration. Yea it ſeemes to mee that the author of the Epiſtle to the Hebrewes entitles the Miniſters of the Goſpell to them by a more particular right,Heb. 7. (as Biſhop Andrewes calls it) jure Benedictionis, for it is not onelyonly ſaid that Abraham paid Melchizedeck tithes as hee was the higheſt Prieſt,Benedixit tantùm v… vatus ex … tione, ſed perior ex … ritate. but that hee received them and bleſſed him; which implyes bleſſing to be the duty he performed for them. And whatſoever wee hold of theſe tithes, I aſſure my ſelfe the Primitiue Church did ſo conclude, otherwiſe they would not with ſuch a generall conſent hauehave bound themſelues to that meanes and portion of maintenance. I ſpeake of the Church in ſtatu pacato, it was otherwiſe with them I confeſſe in ſtatu perturbato, in perſecution; but not out of good choiſe, but hard chance: For obſerue but from the firſt generall Councell of Nice, (not to reckon vponupon Provincall Synods, becauſe they doe not bind our ſtate but onelyonly in point of doctrine and example) peruſe them till the laſt of the Lateraine, and you ſhall finde they are plaine and peremptory. And not onelyonly in the acts which in ſome Councells are erroneous, (as in the ſecond Councell of Nice) being the ſeaventh generall, there is a Cannon very particularly paſſed with a generall conſent; ſo in the Councell of Lateraine vnderunder Innocent the third,Balſomon concil. Nicen. ſecundo can. 12. Concil. Later. 4. can. 54. where it is particularly ſet downe, that the Engliſh Ambaſſadors were preſent. There is a Canon that runs thus, Statuimus quòd ſolutio decimarum praecedat exactionem tributorum. We hauehave nationall Councells alſo as at moſt Coronations of the Kings before the conqueſt, and alſo immediately vponupon the conqueſt; and many generall Charters wherein tithes hauehave beene confirmed to the Clergy, and that with ſolemne vowes and imprecations, which dedication to God, if there be no other divine right, puts the detainers of them into Ananias and Saphira's caſe;Acts 5. becauſe that though while it was wholy with them, it was their owne; yet when it was thus ſeperated by their ſolemne vowes, then ſanctified by the ſolemne act of Biſhops; not onelyonly ratifying the Founders vow, but conſecrating them with the Church to divine vſes, the nature, property, with the propriety was changed. So that I will conclude from theſe premiſes, that the poſitiue law by which tithes are due to the Clergie, is not meerely humane but mixt and preternaturall, becauſe it binds men as they are members of the ſupernaturall ſociety of the Church viſible: and becauſe they hauehave bound themſelues by it in divine conſiderations. But yet they are enjoyed by the confirmation and conſtraining power of the Kings lawes: And were it not for the lawes, as they are an vndoubted due, ſo they would be a perpetuall debt with many; and that out of ſeverall grounds: ſome deſiring to hauehave ſtipends in ſtead of tithes, doe too willingly remit them for a ſufficient ſtipend though it bee vncertaine, eſpecially to their ſucceſſors. But I hope this ground will never be generall, as long as this Kingdome is a Monarchie, for if it is a miſerie of free Cities and Democracies,Ariſt. … 4. cap. foreign — yet I muſt needs confeſſe that at the firſt originall of Vicarages they had but ſtipends, but it was vnjuſt;Linwoo… cio Vica roch. Vicarii ſtipendio ſunt contenti, which was but a permitting provinciall conſtitution. Another meanes whereby the due payment of tithes is impeached, is, the cuſtomes of many places: which are lawfull and laudable with theſe conditions; if they were not the inventions of men, but begotten by time, and if they be as reaſonable as ancient;Cujaciu… pus Vlpi… 10. nam debent eſſe tàm neceſſariae continuatione quàm rectae in ortu: and where the law is defectiue, for cuſtomes againſt law are voyd by the Civill law, if they bee not expreſly confirmed by the ſupreame power. With theſe conditions let cuſtomes be enjoyed.L. Sacra Q. de leg But the next pretenſe is preſcription againſt tithes once paid, and that we may admit with his limitations; as that it extend not to thoſe things that cannot be alienate, that are annexed to the Crowne,Dier. rep 31…1. or if it ſtand not contra ſtatutum poſtea editum, and be granted vponupon a good cuſtome, and the perſon qualified, to poſſeſſe the thing claimed; for lawfull preſcription cannot proceed without as lawfull poſſeſſion. The want of theſe lawfull limitations made the Councell of Laterane vnderunder Alexander the third, condemne and controule the grand preſcription of Clyentary tithes continued from Charles Martellus. Duarenus nef. l. 6. …The taking away of which ſhirking ſhifts made many deviſe another, which priviledge is either of ſocieties or perſons, granting immunities from payment of tithes, which pretenſe of all others (as far as I vnderſtand) cannot bee made good by the moſt favourable forced interpretation that may be; for they are void and nullified according to all the reſtraining Proviſoes that bound a priviledge. For they were granted againſt the law of God and nature, not onelyonly beſides it; there are ſome revoked by the ſame power that granted them, as Innocent the third in the fourth Councell of Laterane. And in this particular Kingdome Henry the fourth made many ſtatutes to reſtraine thoſe priviledges granted to the Friers,4. Hen. 4. c. 7. eſpecially providing that none ſhould hauehave any de novo; but that which proues them void in this Kingdome, is, that not onelyonly the particular perſons, but alſo their whole ſocieties are diſſolved and diſtroyed; and ſo they are expired and extinguiſhed with them:Bartolus in D. Q. Sodales. tit. 24. Idem ibidem. Deſtructo Collegio pereunt privilegia, eſpecially when their revenewes are confiſcate, & non privilegiatus praeſcriptione, non ſuccedat privilegiato. But when other meanes began to be reſtrained, they procured appropriations and annexions of benefices preſentatiue, not onelyonly in point of patronage, but alſo they tooke the whole due without diſcharging any of the duty; which laſt and worſt pretenſe I will not deny but the wit of man may make it plauſible, yet I am ſure it will never bee pleaſing to the will of God. Monkes and Friars were the authors of theſe immunities and appropriations, (to omit cuſtomes and preſcriptions, becauſe they doe not ſo much wrong, and hauehave more ground of right:) I doe not accuſe the Monkes who lived in the firſt fiue hundred yeares after Chriſt, who lived holy, and laboured in their callings, and had no ſuch priviledges: Neither doe I condemne Benedict who was the father and firſt founder of all that profeſſed a regular life in a ſequeſtred cloyſter in the Weſtern Church.Hoſpinianus de origine Mona…hat. For he had good reaſon ſo to doe, conſidering the tumults and many broiles that fell out vnderunder the government of Iuſtinian, & by reaſon of the continuall incurſions of the barbarous nations into Italy. But when he was thus ſhut vp, many reſorted vntounto him, admiring his devotion; at laſt they tooke rules from him, and grew into a fraternitie of the Benedictines: and from them ſprang many other orders; who living a life far different from other men, bred great wonderment in all, and that admiration procured adoration of their profeſſion, & made thoſe that were able beſtow great revenewes vponupon them: Yea they did ſo dote vponupon them, that after a while they endowed them, if not with the greateſt, yet I am ſure the beſt and fatteſt part of their Countryes; inſomuch that moſt of the moſt pious Princes of Chriſtendome were forced to make a ſtatute of Mortmaine, (like Moſes, Exo.who made the firſt ſtatute of Mortmaine) for theſe revenewes which they poſſeſſed were in a dead hand, that did no good to the Common-wealth. Whence we may obſerue that this ſtatute was rather for the benefit of the Common-wealth, then made out of the diſlike of the Church meanes; eſpecially ſince theſe Friers were not of the Clergie, but meere Lay-men; and the Clergy had as much reaſon to deſire a law for Amortization as the Common-wealth, becauſe as they had conferred lands and goods vponupon them, (for not onelyonly Princes, but Popes were taken with admiration of them) ſo they were alſo more charged with the publique, and had leſſe meanes. And this ſtatute gaue the occaſion to them to procure priviledges and immunities from payment of tithes. For though at firſt for a time they came to their Pariſh Churches, yet when they procured to hauehave Churches or Chappels of eaſe for their fraternities; then they obtained under Alexander the third in the Laterane Councell, when hee condemned preſcription,Dua… nef. l… to be confirmed priviledged from payment of tithes of thoſe lands which they tilled themſelues; when as Adrian the fourth our country-man, his immediate predeceſſor had revoked or reſtrained the immunities granted to them by Paſchall the ſecond.Flavius Chen. Compend. Bulla tom. 1. Paſchal. But when Innocent the third, who loved to bee doing and vndoing, reſtrained the grant of Alexander the third, which they perceived did much prejudice their plentifull profit, they procured diſpenſations from the Pope to hauehave parſonages appropriate to their houſes in more great abundance. For I deny not but ſome were annexed before, as to the Abbey of Crowland, and others; yet theſe were granted more by the Popes licence then the Princes authoritie. And then began the Schoolmen to entangle the right of tithes, and their curioſitie and their covetouſneſſe enabled them, and put them vponupon it: for when vnderunder Innocent the third, they multiplyed into multitude, (as there were ſixteene orders ſet vp in that Century) and hee limited and leſſened their revenewes, they ſought to maintaine that by right which before they had obtained by wrong, and retained by protection and priviledge. Then began the contention betweene the Schoolmen and the Cannoniſts about the right of tithes; and I conceiue Innocent the third to be of the Canoniſts part, becauſe he was the firſt great advancer of them in the Church, and no free friend to the Friars. This I hauehave conceived by comparing Church hiſtories with the Cannon law, eſpecially Decretalls: theſe wrongs of the Clergie were ſo brought in and vpheld, ſo continued in our Kingdome till Henry the eighth of famous memorie; who either intending a reformation in religion, ſeiſed vponupon the revenues of religious houſes; or ayming at their revenewes ſet vponupon, rather then finiſhed a reformation, confiſcated them to his vſe, as eſcheated as their lands were, and ſeiſes vponupon their appropriations which were not theirs; but morgaged as it were in commendam to them, and he poſſeſſed the Crowne of them, and ſold them to private men; which hold them by as much right as the Monaſteries did, & no better. Though ſome would willingly perſwade themſelues that they hold them by as right and juſt law, as they doe any purchaſed inheritance; for they ſay, though they were once ſpirituall, yet now they are made temporall, & lay-fees by the lawes of diſſolution; eſpecially in the two and thirtieth of Henry the eighth. It is true that thoſe ſtatutes apply diverſe law termes, (I will not call them meere law fictions) to thoſe things that properly belong to temporall inheritances, and hauehave made them demandable by originall writs, and given order of conveyance, by deed, fine, and act of Parliament; which act, as it is booteleſſe, ſo it is contumacie in any private ſubject to queſtion: onelyonly thus much I hope I may ſay without generall offence, ſince I conceiue it the truth, and yet not all the truth; I doe not yet vnderſtand how that can bee made manifeſt to bee a free Parliament in that point. For I doe not beleeue, that the lower Houſe did either propoſe, or generally approue it, though they aſſented to it. Neither doe I thinke, that King Henry the eight did freely propound it out of his owne choyce, but that the neceſſity of the preſent time did put him vponupon it. And I hope he intended to call it in, if hee had lived. As Dionyſius the King of Syracuſa in Italy, when his treaſure waxed too ſhort for a great imployment: foreign:Poly… Strat hee commanded to take the treaſures of Aſclepius his temple, and to proclaime them to be ſold in the market, as profane and common commodities, which the Syracuſans were very eager to buy, becauſe they had Church-bargaines. But when hee had gotten what his neceſſity required, he preſently ſent forth an edict, foreign, that if any one had bought thoſe devoted treaſures, they ſhould againe reſtore them to the Church. This courſe had beene ſomewhat juſt, if hee had let them enjoy the treaſures, vntill they might hauehave regained by them what they coſt, (as perhaps moſt purchaſers of Impropriations hauehave.) But that which moſt hinders me from apprehending it to be a free pure act, is, becauſe the moſt actiue and ſpirituall part in Parliament, was pittifully paſsiue in it, it was at beſt mixt by reaction in the patient Clergie, who did neither abſolutely obey, nor reſolutely reſiſt, but ſilently ſuffer that to paſſe, which was not right; and therefore the act was not free from wrong. Neither doe many of the judicious ſages of our law ſo fully approue of it.Conſideration 6. Yea Sr Francis Bacon in his conſiderations of the Clergie of England, dedicated to King Iames of peaceable memory, confeſſes, that hee was of opinion, that all the Parliaments, ſince the twenty ſeventh, and thirtie one of Henry the eight, ſtand obnoxious and bound in conſcience to God, to doe ſomewhat for the Church, to reduce that patrimonie; or, that ſince they hauehave debarred the Church of her dowry, they ſhould make her a competent joynture. Which opinion of his, is more ingenious, in my apprehenſion, and advantageouſly pertinent than theirs, who onelyonly enveigh againſt the Parliament, and Henry the eight the head and ruler of it: which act (admitting the neceſsity then that vrged him to vſe the power of Eccleſiaſticall dominion) is not altogether inexcuſable, (though this reformation did more wrong to the Clergie, than the conqueſt:) For what he was to do, was to be done in haſte; and in that routing-ruſh of reformation, who could expect but the part corrected, muſt needs be for the time, neere to vtter ruine; though happely, if the author of the reformation had lived to finiſh it, amends would hauehave beene made in ſome meaſure. But Henry the eight did rather put down the Roman Church, than ſet vp ours; as Alexander the great pulled downe the Perſian Monarchie, but ſet not vp the Grecian. But to pull downe one was the onelyonly way to ſet vp another; as Ariſtotle rooted out all the opinions of the former Philoſophers, to ſet vp his owne; or as Hypocrates, who being their foreign (as Zetzes in his Chiliads) he burned the bookes of all the ancient Phiſicians, to ſet vsus his owne,Chil. 155. or theirs as his. So that if a publick reformer begin once to alter, he muſt of neceſſity, for the time, ſtirre, if not remoue more than hee firſt intended, eſpecially if hee be croſſed and curbed by an adverſary, that ſtands ſtrongeſt by that part which needs reformation, and by that in it, which will beſt helpe him in the performing of it. For he that will prevaile againſt an incroaching enemy, that hath a party in his kingdome, muſt be ſure with all apt induſtrie, to obſerue and oppoſe him in his counſels, by bereaving him of his counſellers and agents, either by taking them away at once, or putting them as exiles from him, or pulling them to himſelfe, which is the ſafeſt and honourableſt courſe. Now the Pope, who was the abſolute inſolent adverſary to Henry the eight, ſtood by the Monkiſh part of the Clergie, and chiefly by their rich revenues; and therefore, it behoved the King, either to reconcile them to himſelfe, or vtterly to ruine them (as fell out becauſe they rebelled.) And in the perſecution of them, hee ranne a cleane contrary courſe to the Pope. As I remember, when Cyrus tooke Babylon, he drew Euphrates drie, and made all land; And Xerxes when he went againſt Athens, would hauehave made all ſea,Dion. C foreign foreign: So Henry the eight made all Lay and land, when hee intended to be free from the vſurpation of the Pope, and the Pope made all ſpirituall and his See, when hee aymed at his abſolute vnreſtrained extravigancie both in See and Scepter. This heat and height of oppoſition made the King proceed too farre, which, I beleeue, hee did ſomewhat perceiue, in that he did retract in ſome particulars, from the firſt courſe: As in erecting ſome Epiſcopall Seats, and more Cathedrall Churches, out of the ruines of Monaſteries and Priories. And in that hee made of the appropriation of Royſton, 33. Hen. 8.a Pariſh-Church. And I preſume, he might hauehave proceeded farther, if hee had not beene ſoone after cut off by death, and hindred by profane and ſacrilegious inſtruments while he lived, who, I perſwade my ſelfe, were the ſame men and meanes, that tried to procure the diſſolution of the Biſhoprick of Durham by act of Parliament, during the nonage of Edward the ſixth. So that the vnhappineſſe of Henry the eight, is, becauſe men judge by the event, not knowing the intent (as Paulus Iovius exclaimes of him.Iovius de vir. illuſt.) In my minde, hee may be well paralelled with Charles Martellus, the Champion of the Church, who, when hee defended the Pope, was the firſt that was called Chriſtianiſſimus among the French Kings, by Gregory the third; yet hee was the firſt that robbed the Clergie in France, by giving Clientary tythes,Baronius Anno 759. which they call feudall to his followers: yea and hee depoſed the Archbiſhop of Reemes, and diſpoſed of the Biſhoprick to one Miloeo Caualeire. So Henry the eight had firſt the title of the Defender of the Faith, for publiſhing a booke againſt Luther, Bellarm. de ſcript. Eccleſ.which (Bellarmine ſaith) Roffenſis wrote, and preſently after fell foule vponupon the Clergie. So that, (I beleeue) the Pope repented of the title, and was ready, no… to giuegive him ſo good a title, as his predeceſſour Iulius the ſecond gaue Lewis the twelfth of France, in his Bull, which Guicciardine notes to proceed of malice,Guicc. hiſt. l. 11. Nella nominon dolo, non piu Chriſtianiſsimo, ma illuſtriſsimo. But let him be as bad as they will make him, yet I dare excuſe him, as Baronius doth Martellus, and ſay of him as Guicciardine ſaid of the Popes,Guicc. Hypomn. Polit. 123. that hee was an honeſt man, becauſe he was not more wicked than moſt men. I hauehave in this as farre as I am able with a good conſcience, cleared our State from the forraine fame of ſacriledge. But I cannot free particular men from it, which hauehave no pretence for what they detaine, or take from the Clergie, but onelyonly that they are not convinced that there is ſuch a ſinne as ſacriledge; and that 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 hauehave 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 foreign: who doting vponupon 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) foreign.Syneſiu… 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 onelyonly 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 tim…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; foreign, vponupon Eaſter day ſet all perſons free foreign,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 vsus, 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 hauehave ſome competent ſuſtenance from the incumbent, eſpecially if he hauehave 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.Mag… 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 onelyonly 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) foreign:Dion foreign … foreign Cujac vat. li… or as the ſame Counſellour to the ſame Emperour, foreign: which Cujacius explaines and limits to coactiue correctiue Lawes, which Dion ſaith, began in Auguſtus dayes, foreign:Dion none of the ancient Romans were freed from lawes, foreign, 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 vponupon 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 hauehave 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 foreign habet. Cujaci… ſerv. l. 2) But from an vnwritten vnreſtrained right of dominion, whereby he hath plenarie power, not onelyonly 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 that of the pluralitie, and non recidencie which the Archbiſhop of Canterbury limits by his approbation.Eccl. Anglicanae Canon. 41. And priviledges muſt neceſſarily bee where there are multitudes of ſtatutes, which be ſo ſtrict in point of injunction, as if the makers of them had not conſidered, that politique lawes muſt be made with reſpect to morall poſſibilitie, as what men may doe; and yet the puniſhment of their tranſgreſſion is not expreſſed, but left to the pleaſure or diſpleaſure of the King. But theſe are not the priviledges that the Kings royall prerogatiue doth grant, as immunities and impunities, for then the lawes ſhould bee onelyonly punitine, if there were onelyonly vſe of protections and pardons: but as lawes are alſo remuneratiue, ſo Princes hauehave power to reward after a priviledging manner, and chiefly in our Kingdome, where it ſeemes to be on purpoſe omitted by the written lawes, and left to the Kings pleaſure and power; eſpecially concerning Eccleſiaſticall perſons, who hauehave moſt neede of them, and may now as freely enjoy them as any other perſons. For though heretofore it was prejudiciall to our Kings to grant priviledges to all Eccleſiaſticall perſons, when they were ſo encreaſed in multitudes, and overgrowne in magnitude for the whole Kingdome, and the Popes would confirme them as irrevocable: yet now they are but few in number and ſmall in power, and the King may call them in when hee pleaſes. This want of theſe priviledges hath beene the cauſe of much evill in the Church, and the more they are impeached by thoſe that profeſſe themſelues the maintainers of the Kings peace, lawes, and royall prerogatiue, the more will the ſtate Eccleſiaſticall runne to ruine. And they are much infringed in our Vniverſities, which I am forced to complaine of, with feare, leſt that fall out which happened to the Vniverſitie of Prague; which was vtterly ruined by Charles the fift, taking the priviledges away at Don Le…is deſire. Whereas Francis the firſt of France fearing and favouring the Vniverſitie of Paris, reſtored all the priviledges which Lewis the eleventh had taken away vponupon a juſt ground of ſedition,Dino hiſt. … which hath made it to reviue and flouriſh ever ſince. But there are ſome politiques that hold it a needleſſe thing, to bee any way indulgent to ſilly Schollers,Cuja… ſent. 1. tit as Cujacius ſaith out of Galen, that they expreſſed weake men vnderunder the title of ſcholaſtici: they make meere foreign, Iohn a noakes of them, but the fault is in themſelues according to the French Proverbe, Qui ſe fait brebis le l…up la mange: For though the Clergie bee weake of it ſelfe, and tempt the contemners of it to over-top and over-turne it: Yet ſince we hauehave a pious prudent Prince, that is royally ready vponupon the firſt appeale, to protect and relieue his poore Clergie: we are not to be pittied, if we neglect to implore his ſupreame aſſiſtance. And thus it is ſomething evident how the honour of the Clergie annexed to the power of order, is granted and ſuſtained by the Kings lawes and royall prerogatiue. I muſt now in briefe ſhew the like of the honour annexed to the power of juriſdiction.
§ 6 The power of juriſdiction which I doe here intend, is not that deligated power which is in Biſhops, Vicars, or Officialls; nor that power Archdeacons and Deanes enjoy, either by cuſtome or priviledge: but that ordinary power which is in Biſhops. To this power of juriſdiction there is honour annexed by the lawes of this land, and the Kings royall prerogatiue: which I divide as before, into revenewes ordinary, and priviledges; the revenewes are their temporalls, and part of the perquiſits, called the Cenſus Cathedraticus: the firſt of which are given and granted by the Kings royall bounty, & confirmed by the lawes; the other are ſet downe and approved by the ſame lawes. Biſhops temporalls are annexed to their ſees by the Kings gift,Stanford praerogat. cap. 1. and are as it were their Gleab, but are indeed their Baronies which they hold of the King in capite, and performe ſervices for them; and therefore they are as it were wards to the King during the vacancie: quae ratione Baroniae (as Linwood) ad Epiſcopum ſpectare poſſunt, Linwood de immunitatib. Eccleſiae. Duarenus de beneficijs. l. 3. c. 11.Dominus Rex cuſtodiam habet; (as Duarenus ſayes of the Kings of France) Princeps quàm diu vacat Epiſcopalis ſedes, feudorum lege, praediorum omnium adminiſtrationem ſuſcipit. But theſe temporalls are not to be reſtored till conſecration, and ſo ſeeme to be annexed to the power of order in Biſhops;Auguſtinus de Ancona de poteſt. P. P. quaeſt. 22. Art. 9. for their conſecration (according to the ſcholaſticall Canoniſts) is but perfectio characteris, which they at firſt received when they tooke the order of Prieſthood, and ſo ſeeme not properly annexed to the power of juriſdiction: for before conſecration, vponupon election and confirmation they may exerciſe the power of juriſdiction, though not of order. Epiſcopus electus & confirmatus poteſt exercere quae ſunt juriſdictionis, Panormitan. in Decret. Ver. Conſ. §. 6.non quae ſunt ordinis Epiſcopalis ante conſecrationem, (as Othobone vponupon Linwood) ſuſpendere poteſt à beneficio, non ab officio; Linwoo… de conſti… Glanvil cap. 10.quia ab officio ſuſpendere, eſt à poteſtate ordinis ordinaria. But Iuſtice Glanvil ſeemes to intimate that they were reſtored, when they were but Lords elect, becauſe electi ante conſecrationem homagia ſua facere ſolent, but whether it were de jure or de gratia (as the learned in the Common law diſtinguiſh,) I leaue to them to determine; and thinke it great happineſſe for the Biſhops, and the great honour of our moderne Kings, that they are ſo fully reſtored at all, ſince they hauehave as much power, and may pretend as much reaſon to ſeiſe the temporalls into their hands as well as others. — But our Royall Soveraignes pious Father,1. Iacob. ſet a good example to his Majeſtie to follow; for in the firſt yeare of his raigne hee enacted a ſtatute to prevent all diminution of Epiſcopall revenewes, though it were to alienate them to the vſe of his Crowne: yea though it were but in exchange for impropriations, (a courſe which was too common in Queene Elizabeths dayes,) inſteed whereof our Kings hauehave out of royall indulgence given ſome licences for Mortmaines. If this redreſſe had come before they had beene too much impaired: Biſhops would not hauehave deſired ſo many Commendams, nor Rectors of Pariſhes made vſe of the ſtatute of pluralitie. To their revenewes in theſe temporalls, there are many honourable priviledges annexed, as they are Barones; So that Biſhops hauehave the priviledges of Barons in the Parliament, and that vponupon good ground, ſince they hold of the King, and performe the ſervices belonging to them;Mathew Hen. 2. (as Mathew Paris) Epiſcopi de rege tenent in capite Baronias, & faciunt omnes conſuetudines regis, & ſicut caeteri Barones debent intereſſe iudiciis regis cum Baronibus. Now the Biſhops (eſpecially ſince the reformation) are ready and willing, not onelyonly 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 onelyonly 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 hauehave from the Kings favours; not in relation to their conſecration, which they hauehave 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 onelyonly 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 hauehave 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 hauehave 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 vnderunder the title of Peeres of the land. Beſides theſe priviledges which they hauehave as they are Barons, the Kings of this land hauehave beene pleaſed out of their Princely favours to beſtow many freedomes vponupon them, eſpecially on the Archbiſhop of Canterbury as amongſt other ordinary and knowne,Stamfo… 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 onelyonly ſtiled Primates of all England, and Metropolitans,Duaren… gradibus cap. 9. Laelius Z… 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 hauehave alwayes moſt highly favoured Biſhops in generall, in ſomuch, that they hauehave made them not onelyonly á ſacris, but à ſecretis, which is ſafe for a King, and no diſtraction to a Biſhop in his calling;Lipſius A… 3. Polit. with Lipſius limitation intereſſe eos poſſe imò debere, ſed rarenter cùm de rebus planè ſeriis agitur, & quae tangunt vniverſ… 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 hauehave brifely diſcourſed,Baron. A… Anno 528 though not fully diſcovered ſome thing of the relation betwixt the ſtate Eccleſiaſticall and the Civill; which I hauehave 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.
End of the text · Calybute Downing, A Discourse of the Ecclesiastical State of this Kingdom (1632)