THe Common-wealth of Venice hath euer constantly held, that the principall foun­dation of all dominion and empire was layed in true Re­ligion and pietie; and hereof (by the special grace of God) it hath had experience, by ha­uing beene begun, instituted, and augmented in true diuine worship: the which with great care she hath alwayes sought to encrease, especially by building many religious houses, and magnificently adorning of the same, furnishing them with decent Ministers, and enterteining of those religious Orders which age after age the Catholike Church hath brought forth. A manifest testimony whereof appeareth in the great number of Churches richlie endowed, and the largenesse of Monasteries, not only in the citie of Venice, but also in others subiect to the same; and that alwayes with a conuenient and necessary respect to cut off all those acci­dents which might be hurtfull to her cities and dominions, through such innouations as vsually creepe in vnder the pretext of Colleges, Frieries, Societies, or Conuents, and [Page 2] to the danger and dammage which great buildings, erected and situated in vnfit places, bring vnto a publike securitie: for she had alwayes a speciall consideration what sorts of per­sons made entrance into her citie, and in what places Mona­steries and Churches had their foundations, the better to nourish and enterteine them: and when they but perceiued that common and ordinary diligence was not enough, from the yeere 1337 a Law was enacted, That in Venice there should be no Churches, Monasteries, Hospitals, nor other such like places built without licence. The which law was af­terwards renewed and confirmed in 1515 and in 1561: but then perceiuing, that such a like care was also necessary to be had ouer other land and maritime townes, in the yeere 1603 commandement was giuen to all Rectors and Gouer­nors, that from that time forwards they should not permit any Religious or Lay person whatsoeuer to build Monaste­ries, Churches, Hospitals, or other Conuents of Religious or Secular, without licence from the Senate, vnder penalties of banishment to their persons, and of confiscation of the building and ground.

The Common-wealth also was euer of this opinion, that as for the time past she had beene exemplarly preserued, so in like maner, that it ought to be cared for hereafter, with the administration of sincere and incorrupted iustice, execu­ted ouer her subiects, knowing what the holy Scripture saith: Regnum de gente in gentem transfertur, Eccl. 10. propter iniustitias, in­iurias, contumelias, & diuersos dolos. And so on the contrary: Rex qui iudicat in veritate pauperes, Pro. 29. thronus eius in aeternum fir­mabitur. Wherefore she mainteining euery one in the pos­session of his goods, together with the speciall protection and defence of euery ones honour, she hath mainteined and happily perpetuated publike tranquillitie and peace; the which, that it might not be disturbed by vniust vsurpations and iniuries towards others, diuers Ecclesiasticall persons hauing many times beene conuicted of enormous and hai­nous offences, who rather, by the goodnesse of their life and [Page 3] maners (as their duetie is) should exempt themselues from criminall iustice; the Common-wealth did not forbeare to execute it vpon them, so farre as was necessarie for publike safetie, granting them notwithstanding an immunitie from the Magistrates, in common transgressions, for a fauour to that Order, after the example of other neighbour-princes; she euer by this meanes keeping the wicked in feare, and sa­tisfying those that were in any wise offended: so that she v­sing thus the power granted vnto her by God, she hath from her first beginning vnto these present times accustomed to sentence and punish, in case of grieuous offence, any person Ecclesiasticall, of what degree or Order soeuer: and by this meanes she hath gone forward in enioying and practising, with publike tranquillitie and peace, the ancient and inde­pendent libertie of her true dominion.

In like maner, the Common-wealth hath laboured at all times to keepe her subiects abundant in possessions and sta­ble substance, she knowing how principally it did import for publike securitie, if the priuate were well accommodated: whereupon, about some three hundred yeeres since, she be­gan to obserue, that the Clergy contended daily to augment in possessions and reuenewes; a matter notwithstanding (though peraduenture they had no such intention) which fell not out onely to the losse and preiudice of secular fami­lies, which of necessitie must needs decay vpon the diminu­tion of their goods; but further, to the detriment of the publike reuenewes and incomes, and also of publike force: for when the number of Citizens which were liable, and ser­ued in ciuill gouernments, impaired, and the quantitie of their goods diminished; vpon which the publike reuenew was raised; and so, on the contrary, the number of Ecclesia­sticall persons augmenting, which pretended exemption from all the necessarie offices and functions of the Com­mon-wealth, and their goods increasing; of necessitie it must needs come to passe, that all publike interests would be wonderfully impaired.

Vnto this may be added another matter, which is, That the Clergy neuer alienating of any thing, but with their great aduantage and benefit, and the Churches, being per­petuall; if they alwayes purchased, and the Seculars impoue­rished; it must necessarily in the end come to passe, that all the wealth would rest in the Clergies hands, and all Nobi­litie and Ciuilitie would haue beene vtterly extinguished, the world being reduced to these two ranks of men, Ecclesi­asticall and Peasants.

To preuent therefore so grieuous and notable an incon­uenience, the Common-wealth ordeined, the yeere 1333, that there should not be giuen or bequeathed to the Chur­ches, the perpetuitie of any thing stable within the Citie and Dukedome of Venice; and yet if that any such bequeath­ment were made, after a certeine time, it should be sold, and the price thereof to remaine to the Church. The which law was obserued diuersly, til the yere 1536, when it was establi­shed after this maner: That none might leaue any thing sta­ble to the Church for aboue the tearme of two yeres; during which time it was to be sold; and this not being performed by Ecclesiasticks themselues, a Magistrate should be appoin­ted to execute the same. And from the foresayd lawes, at di­uers times, so great both publike and priuate good hath en­sued, that some other subiect Cities, euen out of their mu­nicipall constitutions, decreed the same, partly of olde, and partly in these our dayes. Which things, when the Senate had well pondered, to reduce their whole State to an vnifor­mitie, and to preuent the diminution of secular substance, in the yeere 1605 they promulged a Law which was ordeined for the Citie of Venice, and together extended it selfe to the whole State; adding furthermore, That no man in the Citie of Venice, or thorow the whole State, might vnder any co­lour whatsoeuer, sell, giue, or by any other meanes alienate to an Ecclesiasticall person, any thing stable, without licence of the Senate, to be granted them after the same maner and forme as was vsually granted in the alienations of goods [Page 5] publike, and that euery alienation otherwise performed, should be frustrate, and the stable confiscated, with a penal­tie set vpon the Notaries.

For which considerations, three yeeres before, 1602, to moderate the superabundant purchase of the Clergie, who vnder pretext of their direct title in some things of theirs possessed by the Laitie, went about euery day to appropriate the same to themselues, suing sometimes one, and then ano­ther of the possessors, Enfiteusi new­ly planted or engrafted. and imposing the tearme of Enfiteusi vpon all their Leases and Perpetuities; and by this meanes pretending dayly a right in all sales, that either the posses­sors were decayed, When direct heire failed, to one but collaterally allied. or that the goods could not descend to euery kinde of heire; to the great preiudice of the subiects, who were entangled and molested in continuall brabbles and sutes: vpon occasion of a certeine controuersie mooued by the Monks of Pragia, the Senate decreed, that Chur­ches might not appropriate to themselues goods possessed by the Laity, per praelationem lineae, cum solidatione vtilis, their direct right and freehold still reserued. The which was en­acted, considering the vse of this custome, for more than two hundred yeeres, and innumerable iudgements confor­mable thereto denounced, to take away all occasion of con­trouersie and strife, and to set downe a written forme for the Iudges vpon all occurrents to prosecute.

These Lawes, ordinances, and administrations of iustice had beene very well discerned, knowen, and obserued by the former Popes, as well by the continuall informations they haue from the Clergie of this State, as further; by those particularities which they dayly receiued from their Nonci­oes resident in this Citie; whereas also, many Popes haue had full notice and knowledge thereof by themselues; some be­cause they were borne and brought vp in this State, others by hauing liued a priuate life in the same, discharging there the office of Confessors for many yeeres; some the office of Inquisitors, and others hauing beene Bishops of some cities. So that euery Pope hath by some meanes had knowledge of [Page 6] the equitie and iustice of the Venecian lawes, and of the ar­rests of their Magistrates; whereby we may suppose, that they neuer hauing reclaimed any of them, they haue secret­ly in a maner approued of the same. Iudgements and arrests haue euer beene executed vpon Ecclesiasticall persons, and in times past more often than of late dayes; and the ordi­nances or lawes aboue written, omitting more ancient Re­cords, haue beene administred aboue this three hundred yeeres, although now of very late time some of them haue been newly confirmed; others more largely extended; and others of vnwritten (which notwithstanding were obserued) made written lawes; and finally, are so expressed and diuul­ged. Of which, one of the yere 1602, and another of 1603, were perused by Pope Clement the Eighth, a most zealous and vigilant Pastor, and yet they could not giue satisfaction to this Paul the Fift, who thought good, in the beginning of his Papacie, to examine the Lawes and Statutes of the Com­mon-wealth.

But in the end of October last past, in an ordinarie audi­ence, he complained to the Ambassador of this Common-wealth, because in sede vacante they had made a law, which prohibiteth the Clergie to purchase any thing stable; he fur­ther vrging, that though it were instituted in the vertue and force of another former, yet that the Canon lawes, both the olde and new, were inualidious; for which cause it was his absolute pleasure it should be disanulled, enioyning the Ambassador to certifie the Common-wealth of this his will and pleasure.

Who performing as much, and hauing receiued order from the Senate, that he should lay open to the Pope the equitie, iustice and reasons of that law, and of the preroga­tiue which the Common-wealth had for the making of such ordinances; the Pope [...]auing still to his former delibera­tion, sayd openly, he was content to heare them for their owne satisfaction onely, and not to consider any further of those their allegations; and so concluded, that vpon this [Page 7] point an hortatorie Breue should be directed vnto Venice, shewing an Excommunication, which he caused to be pub­lished against another City; intimating, how that in such like causes he looked not for answers or allegation of reasons, but for a speedy and ready obedience. And he moreouer moo­ued another complaint for the retention (some few moneths before) of a Canon of Vicenza, and of the Abbat of Neruesa, alleging how it was his pleasure, that they should be put o­uer to the Ecclesiasticall Court, and that though the Com­mon-wealth were priuiledged to iudge Clergie men, yet this did not extend to such maner of persons, nor to such kinde of offences, for which the two aboue named were imprison­ed. And heere I thinke it needfull to digresse a little, for a declaration of the true cause why these delinquents were committed to prison. Brandolino Valdemarino, Abbat of Neruesa, was accused and complained of for vsing many ty­rannicall courses vpon the goods and wiues of certeine men that inhabited in the townes neere about him; that he had killed diuers persons with poison, and amongst these, one religious Priest, which was his Curate domesticall; that he had giuen poison to his father and a brother; that he had caused diuers men to be slaine; that he had continuall and dayly carnall conuersation with his naturall sister; that hee had vsed many magicall and wicked practises to compasse his dishonest purposes, and for other ends, which can not without horror be more particularly expressed; as appea­reth in the denunciations and complaints made by diuers persons against him. And Scipio Saracino, a Canon of Vicen­za, was accused for hauing contemptuously broken vp the publike seales of the Rectors of Vicenza, set vpon the Bi­shops Chancerie, sede vacante, for the custodie and securitie of the Euidences and Writings of the Bishopricke, at the in­stance and request of the Chancellour of the same; and moreouer, that he had insolently caried himselfe towards a gentlewoman, a widow, of the principallest family in all Vin­cenza, his kinswoman, by defiling her gate and house, after [Page 8] he had a long time, by vndecent meanes, attempted her chastitie to the publike scandall; for he forbare not to put in practise his luxurious disleignes, euen within the Churches.

But to returne to the Pope, his H. in diuers meetings with the Ambassadour, perswaded the Common-wealth to lay aside all their reasons, and absolutely to obey him; and after some dayes he renewed fresh complaints against the law aboue written, which prohibited the building of Churches without licence: and at last, he resolutely came to this point, That he would haue the foresayd two Lawes reuoked, and the two prisoners deliuered to his Nontio then resident in Venice: wherefore on the tenth of December drawing two Breues, one vpon the two lawes, and another vpon sentence giuen on these two Ecclesiasticks, he enioyned his Nontio to present them. But the Nontio (moued thereunto perad­uenture) because the Senate at that time had chosen an Am­bassadour extraordinarie, to assay all milde and possible meanes to remoue his holinesse from this resolution, which he had vndertaken, before well vnderstanding of the cause; and to induce him, first to be better informed, before he proceeded to any other execution; but he deferred the pre­sentation of the Breue, this being a thing not well approued of by the Pope: so that with all expedition he sent him com­mandement to present them immediatly. Wherefore on the day of the Natiuitie of our Lord, when Duke Grimanni was euen yeelding vp his soule into Gods hands, and that the Signorie with the Senatours were assembled, of whom, some had alreadie receiued the holy Sacrament of the Eu­charist, others were to receiue it, he requested audience, and presented the two Breues sealed, which were not then ope­ned, by reason of the Dukes death, which hapned the day following, while after election made of a new. They being at last both opened, they both appeared to be of the selfe­same tenor, and implied thus much: How it was giuen him to vnderstand, that the Common-wealth in her decrees had constituted many things against the libertie Ecclesiasticall [Page 9] and the authoritie of the See Apostolike; and that particu­larly she had extended thorowout her whole dominion cer­teine lawes, which concerned only the City of Venice, which prohibited the building of Churches, Monasteries, and Re­ligious places; and another which forbad the alienation of Lay mens goods to Ecclesiasticall persons, without the Se­nates licence. All which things, as being contrarie to the Ecclesiasticall libertie, he declared as inualidious, and he that instituted them had incurred Ecclesiasticall censure, commanding vnder paine, latae sententiae, that they might be reuoked and cancelled, threatning, if he were not herein o­beyed, to proceed further.

Whereunto the Senate, about the eight and twentieth of Ianurie, made answer, That they had with griefe and much woonder vnderstood by his H. letters, that those lawes, which through so many ages had so happily beene executed by the Common-wealth, and which by no one of his prede­cessors were euer reprehended, and which to repeale, would be a turning topsie-turuie of the foundation of their gouern­ment, were now found fault withall, as being contrary to the authoritie of the See Apostolike; and so they which institu­ted them, being men of singular pietie, and that deserued well of the See Apostolike, which are in heauen, come here­in to be taxed for Violaters of the Ecclesiasticall libertie; that they had, according to his H. admonition, examined the lawes, both olde and new, finding nothing in them which might not be decreed by the authoritie of a supreame Prince: and touching some particulars of their allegations and reasons, they concluded how in their opinion they had incurred no censures; and that his H. replenished with reli­gion and pietie, would not without well vnderstanding of the cause, perseuere in his comminations and threatnings.

And heere it is first required, that we proceed a little fur­ther, and declare what the obiections are which he makes a­gainst the two lawes aboue-written, how easilie and readilie they may be answered; and together, what is the reason, [Page 10] iustice and equitie of these lawes, and how lawfull the pow­er of the Common-wealth is to institute them.

The Pope obiecteth against both these lawes together, That they are sedis Apostolicae auctoritati, & ecclesiasticae liber­tati immunitati (que) contrariae, tum generalibus Concilijs, & sacris Canonibus, necnon Romanorum Pontificum constitutionibus re­pugnantes; wherefore, aboue all other things, it will be very fit, that we vnderstand what this Ecclesiasticall libertie is, and from whence it tooke the originall; seeing it is most cer­taine, that this name is but new, and for twelue ages neuer so much as heard of in the Church. The holy Apostle S. Paul makes mention of a Christian libertie, in his Epistles to the Romans and Galathians, at full, shewing therein, That by the sinne of our first father we were all made seruants vn­to sinne, from which seruitude Christ our Lord hath freed vs, we being redeemed by his blood; and therfore he saith: Cùm serui essetis peccati liberi fuistis iustitiae, nunc verò liberati a peccato, Rom. 6. serui autem facti Deo, habetis fructum quidem sancti­ficationem, finem verò vitam aeternam. And to the Galathians he propoundeth another seruitude to the ceremonies of the Law of Moyses, from which in like maner Christ hath freed vs, when he saith: Gal. 4. Nunc fratres, non sumus ancillae filij, sed libe­rae, qua libertate Christus nos liberauit. This so great grace of libertie was giuen to no others, but to euery one of Christes faithfull, and generally to the body of the Church. Where­fore some of the ancient Saints, called it the libertie of the Church, and none oppose themselues against this, except the minister of the diuell, and the partakers of hell; and there is no doubt, but whosoeuer in the least tittle, went a­bout to derogate from these lawes, but that he should be an alien from the holie Catholike Church. But of this libertie we speake not at this present, seeing that the famous and au­thenticke name of Church, which anciently was common vnto all the faithfull, as well Clergie as Laietie, seemes now to be restrained for the most part, to signifie the Clergy only. Whereupon libertie hath beene granted to it, separate from [Page 11] the former, of which, as it appeares, Honorius the Third was the first that made mention therof, about the yere 1220: but what the same Honorius vnderstood by Ecclesiastical liberty, and the Emperour Fredericke the Second, who in the same time, and at the instance of the same Pope nameth it so, nei­ther they themselues expresse, nor is it yet well decided a­mongst the Canonists: for in all the Canon Law we finde it not determined, neither be these things expressed which are comprehended vnder the same; as also there is no rule set downe, how to iudge of them: for the which cause, when disputation groweth vpon any point, they do not agree vpon it, what is against Ecclesiasticall libertie. Libertie is defined by the Ciuilians to be a certaine naturall facultie, of per­forming what one will, as farre as the lawes permit. Some thinke, that this facultie in the Clergie, to doe what they list conformable to the lawes, should be the libertie of the Church; so that by this meanes, and in that sense, the same which is absolute libertie in the Laie-man, in him of the Clergie it is libertie Ecclesiasticall, and it consisteth in enioi­ing that facultie, which common lawes affoord euerie one. It seemes this is the meaning of that chap. Eos qui: De imm. Eccl. in 6. where it is said; that if any man forbid the baking of bread, the grind­ing of corne, or such like seruices to be done to the Clergie, this would be presumed to be done in derogation to the Ec­clesiasticall libertie: Others are not of this opinion, but vn­der this title, they comprehend those things which onely concurre with the Clergie, by reason of priuiledges granted vnto them by God, or by the Pope in things spirituall, and in those temporall by Princes; so as by this meanes it signi­fieth no other but a priuiledge of exemption granted to the vniuersall Church, as well in things temporall a, Spirituall.

An other opinion there is, which comprehendeth these two in one: Some call Ecclesiasticall libertie, whatsoeuer hath beene done in fauour of the Clergie, and they say those Statutes are made against it, which make the Clergie more feareful, and the Laiety more insolent, the which is Bartoloes [Page 12] definition, Authen. cassa, C. sac. sanct. Eccl. and it appeares to be most applied to the exalta­tion of Ecclesiasticall order.

Now it is fit we declare, that in which soeuer of these sen­ses you take these words, Ecclesiasticall libertie, the ordinan­ces of the Venetians Common-wealth, together with the condemnation, and imprisonment of Ecclesiasticall persons, infringe no libertie; and withall, we will resolue such obiecti­ons as are particularly made against any of those lawes.

The Pope alleadgeth no other speciall reason why the law of prohibition to build Churches, is offensiue, but one­ly because it was instituted; for so be the formall words of his Breue: Quasi Ecclesiae, & Eccl [...]siasticae personae temporali vestrae iurisdictioni subiectae aliquo modo essent, vel qui ea rati­one in vestris ditionibus Ecclesias, & alia pia ac religiosa loca extruerent, tanquam in aliquo scelere deprehensi mulctandi vi­derentur.

Neither in like manner, doth he alledge any other reason to prooue his intention, that the prohibiting of the Laietie not to bequeath or giue in perpetuall, & not to alienate any thing stable to the Clergie, is against the libertie Ecclesiasti­call, but that it seemes it is grounded vpon a certaine vsur­ped iurisdiction, which the Secular power hath ouer Eccle­siasticall goods; and these be his words: Perinde ac si tempo­ralibus dominis liceret in Ecclesiastica bona, quae Ecclesijs, Ec­clesiasticis (que) personis, & alijs locis pijs, à testatoribus, & caeteris Christi fidelibus, pro remedio peccatorum, & exoneratione con­scientiae plerun (que) relinquuntur, aut alio modo conferuntur, ius ali­quod exercere.

But first of all, any one that shall but diligently consider, will of himselfe conceiue, that to make a law which prohi­biteth euery body, as well Ecclesiasticall as Laie, to build no Churches without licence, is not (as the Pope obiecteth) to exercise a power ouer the Church; but rather ouer the ground, floare, or superficiall part, where one may build; which no man can denie to be purely and meerely secular. No priuate man that should forbid an Ecclesiasticall person [Page 13] to build a Church vpon his ground, could be said to ordaine any thing against the Church, or any Ecclesiasticall person; but that he may dispose of his owne ground at his pleasure, and forbid the vse of a thing, which he is not bound by the law to permit or graunt. That which may be built, is not called a Church; but that which is readie dedicated: euerie priuate man hath power ouer his owne freehold, and the Prince hath a greater power ouer all the ground and free-holds of his dominion. Wherefore as it would be iniustice to build a Church vpon any priuate mans ground without his permission; no lesse an iniustice it were to do as much in what place soeuer belonging to a Prince, contrary to his prohibition: In neither of these constructions is the libertie Ecclesiasticall infringed: not in the former case; because no man hath libertie to vse that of an other mans, against the owners will: and in the second in like maner; because God the vniuersall Lord of all things, giuing libertie to the Mi­nisters of the Church to build Temples, he doth not in this take away priuate power and dominion, nor yet the Princes empire and prerogatiue ouer the soile; neither did the Pope otherwise at any time, nor he cannot dispose of the same, being a thing temporall; and no Prince could euer with his priuiledge dispose of any thing in the State of this Common-wealth, which was born free; and so in no respect there is no derogation heerein from Ecclesiasticall libertie.

For if this reason were preualent, The Church is a spiritual thing; wherefore he which disposeth of the building of the same, goes about to dispose of a thing spirituall: it would follow, Rouen, a kinde of oakes. that a Prince that should prohibite to put oakes or timbers into the building of Churches, which likewise serue to build gallies, ships, bridges, and for other vses; or that through scarcitie should forbid to couer them with lead, for which he had more necessarie vse in the wars, he might be said to make a law against the Churches, and the couering of them, it being notwithstanding true, that his ordinance is but vpon timbers and lead, which are meerely temporall [Page 14] things. What is it I pray you which may not be dedicated vnto diuine worship? Why surely nothing; for sinne onely being opposite and contrarie vnto God, all other things may be consecrated vnto him. He therfore that disposeth of a thing by forbidding it not to be dedicated; shall he in this offend God? No questionlesse.

For the commandements of diuine honor being affirma­tiue, comprehends not all matter, all places, all times, as they would haue them to doe that wring euery thing to Ec­clesiasticall behoofe; but he permitteth, after nothing is wanting to his seruice, that the rest be applied to humane vses, and that there may be ascribed to himselfe, what is apt­ly decent and fit.

If it were lawfull against a Princes will to build a Church in any place, it would be in like maner lawfull to vse any mat­ter, or what workeman soeuer; the which extending euen to the furniture and ornaments of the Churches, and of the sa­cred implements, it would follow that euery cloth, all met­tall, wood, or any other thing, should belong vnto the State Ecclesiastical: the absurdity of which consequences do euidently declare, that as the Church being once dedicated, it perteineth then to the Spiritualty; so no place can be dedi­cated, without the permission of the Temporall Prince: and the equitie of this law hath euer beene apparently knowne vnto the world. L. sacra §. 1. ff. de re diuis. L. si plures sint & l. 2 ff. de rel. q. & sum. fun. L. vlt. ff. un. in pos. legael. Cicero in his Oration pro domo sua, sheweth, that in those daies no man could consecrate an altar, iniussu populi. Vnder the heathen Emperours also, there were foure lawes which forbad the consecration of any thing without the Princes leaue; which Iustinian hauing placed amongst the Digesta, out of doubt he hath adapted them to our reli­gion, and giuen them vigor also ouer the building of our Churches: and whosoeuer shal read the Ecclesiastical Histo­ries or Iustinian his Nouels, will finde, that in the Emperours daies, as well in the East as in the West, it hath in this point beene referred to the Prince aboue all others; so that their licence and fauour was euer requested to build new Chur­ches; [Page 15] and further, that not any did euer so much as thinke of the building of a Metropolitan or Cathedrall Church, without the expresse decree and permission of the Prince. Vpon this point we may peruse the 27 Nouell of Iustinian, and that which Balsamo very copiously relateth vpon the 17 Canon in the Councell of Calcedon. And here it will not be much from the purpose, to adde the custome of France, where they can not build any Churches without expresse grant by the Kings Letters-patents; and moreouer, the ar­rest or Act of Parliament. And further, to set downe an ex­ample of some place in Italie, we haue it here recorded, that in the Common-wealth of Genoa, there is a particular consti­tution, that without the licence of both the Colleges, they can not build any Monasteries, vnder penaltie of confiscati­on of the place.

But the Common-wealth of Venice neuer cast her eye so much vpon the materiall Churches, as on the persons which were to gouerne them; for euery Order of religious men befit not any place. We haue an excellent example of this in the famous gouernment of the Kings of Castilia, where, without the Kings licence, no new religious Orders can haue any entrance into those Kingdomes; and therefore euen at this present the Cappuchine Friers could neuer be thither admitted. And there are not many yeeres past since the Fa­thers of S. Francis of Paula began to build a Church in Ma­dril, without the Kings permission; which worke King Phi­lip the second made stay of, the Church it selfe yet remain­ing for an example, it being begun, and not finished. And your holinesse hauing sometimes beene Nontio extraordi­narie to that King, may peraduenture haue seene the same.

The foundations of this decree are no lesse equall, rea­sonable and lawfull, than most necessarie; for as it would not in any wise be permitted to a great number of a strange State, contrarie in their customes of life, and hauing diuers ends from those of a Common-wealth, to enter into the State of such a Common-wealth, to gather themselues toge­ther [Page 16] into one place, to make amongst them an head, and in secret to practise with the Princes subiects; seeing this would be presently interrupted as a suspitious and pernitious con­uenticle: So vnder pretext of some new Monasterie, many of other nations sometimes may come in together vnder an head, they being contrarie in customes and affections, and by the opportunitie they haue, through Confessions or o­ther Spirituall conferences, insinuating with the Princes sub­iects, they may by this meanes corrupt them in their fideli­tie: this in like maner, for many excellent causes, is dili­gently to be looked vnto, for the publike preseruation and peace of the State; and euen for this very respect it greatlie concerned the Common-wealth to dismisse certaine Fathers of a Monasterie, all of them being of strange nations, be­cause diuers men of the Arsenall were seduced by them. And thus we may see, that the Oratories and Monasteries in a Citie which consist all of one Nation, especially when they are replenished with diuers sorts of men, can not be enterteined without notable danger, if the Prince be not alwayes made priuie with what passeth amongst them in their assemblies. Vnto this may further be annexed, that buildings which are not situated in conuenient places, they bring great dammage vnto Cities, and especially to those which are strong and fortified: and it is well knowen how many Cities haue diuers times beene lost, by meanes of a Church built without the walles, not farre from the Towne ditch, when it hath come into the enemies hands there in­camped: as also in like maner, what hurt such a building nere vnto the walles within hath procured: and so what a num­ber of aedifices and erections, for important respects, haue beene rased and pluckt downe for publike securitie, to the no small woonder (sometimes) of deuout and ignorant persons.

It is not only profitable for publike good, as hath aboue beene shewed, that Churches should not be built without licence; but further, it is requisit for the Churches them­selues, [Page 17] to the end that any man, at his owne will and pleasure, may not erect them in vndecent places, neere to publicke Stewes or common Necessaries; nor of vnseemly forme, or without the conuenient decorum due vnto the maiesty of Re­ligion; so as they might serue rather for derision, than any thing els. And we see, that the great and superabundant number of Churches is not profitable for deuotion, but ra­ther quite contrarie; for when they are too many, due serui­ces can not be discharged to all; and one Church ill serued, procureth more indeuotion, than tenne well employed can preuent: as also, the almes sufficeth not for all the Chur­ches, when the number of them exceedeth; so as neither the old nor the new haue their requisit cures.

Through Gods grace and fauour there want not Chur­ches and other holy places in the Citie of Venice, and in all others subiect to that State; and these such and so many, that some Cities replenished with the reliques of innumera­ble Martyrs, scarse decently preserued, may take an example from them: and yet for all this, the Senate neuer forbare, when conuenient opportunitie was offered, to giue licence for the building of new Churches and religious places, wher­soeuer it fell out fit; and in like maner, to admit ingresse to new religious Orders, after the enacting of the sayd law.

But who will not maruell, when he shall heare the penal­tie of this Venetian law, imposed vpon him which buildeth Churches without licence, reprehended; it being obiected by the Opposer, That to build them is in it selfe no wicked act? As though a worke of his owne nature, and in it selfe good, if it be performed without due circumstances, is not vicious and deserueth chastisement. Not from the matter or obiect only (sayth Aristotle, and after him, 2. Ethic. c. 6. all the Diuines) is an action construed, but from the integritie of all the cir­cumstances. It is good to build Churches in place, time, and maner conuenient: but without these conditions it is not good to build a Church on another mans ground; neither is it iust, without the owners consent. Besides the dominion [Page 18] which euery priuate man hath, a Prince hath a farre greater power ouer all places, to whom both the owner and the place it selfe is subiect; so as we may not do with them what the Prince prohibiteth and consents not to.

Out of question, I haue spent many more words heerein than was requisite, that euery one (if he haue but common sense) may conceiue the reasons and occasions of this law: but I repent me not hereof, because they may also serue for a defence of that law of 1605, which prohibiteth the Laitie to alienate any thing stable to Ecclesiasticks. For this doth lesse dispose of any thing of the Church, neither imposeth it any thing vpon Ecclesiasticall persons, but only vpon Seculars and Secular mens goods. What iniurie shall a Prince offer in this, when he commandeth his subiects to haue no com­merce with some kinde of persons? The prohibiting of for­ren transportations, or to bring in all kinde of merchandize, is an vsuall thing in all Kingdoms: is it therefore an iniurie to strangers? I thinke no man will subscribe to this conse­quence; and so much the rather, by how much priuate men make such a law vpon their owne goods, when in contracts liuellarie they set downe conditions, When one builds vpō an other mans floore. that the liuellaries shall not sell or alienate his goods to the Church: and yet euerie one doth this. And others in their Testaments, to keepe their goods in their house, they deuise couenants, that it may neuer passe ouer to the Church. All lawes de fide commissa would be against the liberty Ecclesiasticall, because they for­bid the making ouer of any goods to the Church, and those of Falcidia Trebellianica also, because they all detaine that portion from the Church, which being taken from the lega­ced, they would haue then remained vnto the true heire.

I know that some one very desirous of the augmentation of Ecclesiasticall rights in the Temporaltie will affirme, that so it is; but I beleeue his opinion will haue but a few follow­ers: and it is a great wilfulnesse, to condemne actions and or­dinances which all Christendome, from a thousand fiue hun­dred and more yeeres since, hath not onely (I will not say) [Page 19] admitted; but further, praised, commended, and thought them seruiceable vnto God.

There are indeed some, who in fauour of the Secular may say, That it had beene, and would yet be very lawfull, to constitute a law, that none might sell their stable possession without licence: which generall caueat would also compre­hend the Ecclesiasticks: and the Prince, being sued vnto for licence, might readily grant it, when the alienation were to passe ouer to a Lay man; and so to denie it vpon the demise to an Ecclesiasticke; and this would not be against libertie Ecclesiasticall.

To whom we must answer with some libertie, for if they would a little looke ouer their Logicke, they should finde that the whole genus being granted, euerie species in priuate and particular is yeelded vnto: so that whosoeuer grants, that a Prince may absolutely prohibite any alienation, he must needs likewise confesse, that hee may prohibite it in Strangers, Noble-men, Ecclesiastickes, or in whatsoeuer kinde of other persons in particular. They say he may doe this absolutely to all; but so not to the Clergie alone: and the Logician saies; he may vniuersally to all; and therefore also to the Ecclesiasticall in particular.

But yet we will speake vnto them somewhat more serious­ly, and aduise them to studie a little the holy Scriptures, where S. Paul will teach them: Nolite errare, Gal. 6. Deus non irri­detur: A goodly matter certainly. If this be no sinne to pro­cure that lay goods may not be passed ouer to ecclesiastical persons, why do they condemne it? why reprehend they it? Hath not the Prince done well enough, in no waies offend­ing of God; and if it be sinne, when the same effect remain­ing, the words are but onely changed; what haue they done else in this, but iested with God, and thought to deceiue him with Sophistications? It is not Gods pleasure that such like thoughts should euer come into a Christian mans heart. If it were Gods will, that the Clergie ordained by him to at­tend Spirituall things; & allowing this institution, that they [Page 20] should be made owners, not onely of a part of Temporall things, but euen of all; we ought not then to honour them with words onely, but euen with deeds to procure also, that assoone as possible, this his diuine will might be effected.

But let vs proceed to declare more perspicuously, that a Prince by such a law ordaineth but truly of his owne things, and not of those of the Church. This is most manifest, that if any seruice lie vpon a possession or tenure, the owner of the same cannot passe it ouer so to the Church [...], as that this seruice and bond may be frustrate: but whatsoeuer possessi­on stable there is in a State, it oweth subiection to the Prince, the which is greater and much more strict then can any waies belong to a priuate man; for the power of a Prince ouer all goods, is farre greater then is the prerogatiue of a priuate man. A Prince by his power for publike good, may extenuate and vtterly take away a priuate right; but a pri­uate Lord can in no wise derogate or take away from the power of a Prince: for euen by his will and gift, or any o­ther meanes he cannot procure but that a Prince will haue his interrest therein. Let euery one but weigh and consider how conformable to nature it would be, that any thing should passe by the disposition of a priuate man vnto the Church, and that for this cause it should be free from sub­iection to the Prince. But they will answer: they are content it should be conueied ouer with bond and obligation, to pay all such duties as it was charged withall in the Lay man. Ve­rie good; but why at this present doe they consent heereun­to, and in times past they would be exempted from all co­uenant and bond. And yet moreouer we may affirme, that a Prince hath other right ouer all stable goods, besides ordi­narie tributes; seeing he may challenge extraordinarie du­ties also in the same, without the which couenant, it is not reason it should be conueied ouer, because as well as the others, he may taxe it with other impositions. And if this seeme somewhat a hard condition, yet is it but naturall. But further yet; if the Prince challenge some personall seruices [Page 21] from the possessors, as in the warres, offices, Court atten­dance, or any other respect; why should he lose it? and be­sides this, the Prince hath ius, to confiscate that stable pos­session for the Lords offence; but being passed ouer to the Church, it is not then confiscable; and therefore why should the Prince lose his ius? and heere occurreth a most notable example to conuince these opponents.

Ecclesiasticall Benefices are voide by the death of the In­tendants, and therefore the Court of Rome hath the first fruits, and the price of the Bolle. Many Benefices belonging to Monasteries, Chapters, and other Fraternities, the Popes perceiuing that by such a dependence they lost that benefit, which otherwise by the Curats death came vnto their hands, and they considered that vnder euery fifteene yeeres, such a vacancie might haue fallen out; and therefore they ordai­ned, that all Benefices thus depending, should pay euerie fifteene yeeres a fifteene. So in like maner may a Prince sup­pose, that vnder euery hundred of yeeres, a possession may come to be confiscated, and so make them pay euery hun­dred yeeres a valuable confiscation.

To preuent which, in some kingdomes there is a custome that when any thing stable is conueied ouer to the Church, the same is bound to giue homine viuente moriente, and con­fiscabile, till the stabilitie be by royall authoritie extinct. Euery fifteene a fifteenth, & once in an hundred con­fiscable value.

Stable possession also, is oftentimes sold, and paieth for the same some duties to the Prince, or goeth to strange heires, for which likewise a certaine portion is paid: as in like maner, if after the terme of many yeeres, one of these ac­cidents should occurre, would it be reason that the Prince without any consent giuen thereunto, should be depriued of these his rights? And therefore the Statute of 1605 is verie iust and iuridiall: and if together with licence for the reasons aboue alledged, there were a peculiar dutie paide vpon the conueiance ouer of any thing stable to the Church, it would not be vniust; for in France and many other kingdomes, when any thing is passed ouer with licence [Page 22] to the Church, they pay a third part, as they say, amortiza­tion, that is, for the possession stable, which now lieth dead as it were to the Prince, who hath no profit nor seruice from it as before. There is nothing therefore committed against iustice and equitie, if the Prince seeing himselfe to lose so many royalties, and perceiuing the Clergie to enioy twenty times so much as they may well content themselues with, deliberate and resolue to stay their hands, and to permit no further purchase without licence: the which notwithstanding he may grant them when it shall be conuenient. These re­spects of confiscation, sale, and legacie vnto strangers, con­curring also with the ground or superficies where any deter­mine to build Churches; no wonder though a Prince per­mit not, that his royaltie therein be amortizate without his licence. But proceeding yet somewhat further; they which denie a secular Prince this prerogatiue, to make lawes vpon Ecclesiasticall goods, or that Ecclesiasticall persons should be subiect to secular lawes, they neuerthelesse consent to this, that any kinde of lawes may be instituted to compre­hend within them also the Clergie. But publike good re­quireth, that this most principall member of a Common-wealth should be preserued, which is, the part Secular, in that it beares all burdens, performeth publike actions, as well reall, as personall, to the end, that fall not out where­of Vlpiano speaketh; ff. de mune & bon. l. 3. Quòd viribus destituta erit Respub­lica. This law therefore is iust, and it is but conuenient, that this member should be protected by the Prince, so that his owne good and treasure being preserued in the same, it may retaine necessarie force to serue the Common-wealth: & if it grow from this, that the Ecclesiasticks haue lesse then they should haue; this comes not directly from the Prince, but ac­accidentally occurreth; and the lawes or iustice hath neuer respect to that which insueth indirectly or by accident: nei­rhet is it presumed, he doth iniurie his neighbour that hath only reference to his owne peculiar profit, although it may wel grow therupon, that his companion is depriued of some [Page 23] gaine, which otherwise he might haue made to himselfe. l. si quis ne cau­sam ff. si [...]ert. pet. c. quia di­uersitatem de conces. praeb. I confesse, if this law were not, the Church indeed might be more enriched; but iniunctiue charitie and God commands vs, that euery one should first regard those things most ne­cessarie for himselfe, and that is, to follow his vocation. He that preserues his owne, preserues it out of doubt from com­ming into another mans hands; and one neuer growes rich, but another is the poorer for it: and yet it is not against the rule of charitie to preuent our owne pouertie, because here­in we hinder another mans enriching. A Prince must haue a care, that the peace and power of his Empire be main­teined.

And if from hence it come, that the Clergies allowance shall not augment, the Prince must not haue an eye to that. Gaietan, who was followed by diuers others, In Summa ner. excom. c. 31. denieth that Se­cular statute to be against Ecclesiasticall libertie, which re­straineth and moderates the expence of Funerals, Marria­ges and new Masses; and yet it manifestly proceeds heere­from, that the Clergie are by this meanes depriued of those gaines, which otherwise they should enioy, if all excesse were lawfull.

If the Clergie would buy or purchase, 12. q. 2. with what money shall they buy or purchase? The granted Canon commands, that the Ecclesiasticall reuenew should be distributed into foure parts; the first for the Bishop, the second for the Cler­gies maintenance, the third for building, and the fourth for almes to the poore: the which was also confirmed by Charles the Great, in his Capitolar. l. 1. c. 87. The Clergie certeinly would not purchase with the first or second part; and it is not conuenient to take away necessarie maintenance: to let old buildings go to the ground to buy new, there is no rea­son, and it would be against publike good; and to imploy therein the fourth part, which belongeth to the poore, pie­tie will not suffer, nor the saying of our Lord, seeing S. Paul commands vs to haue alwayes in remembrance, Beatiùs est dare, quàm accipere. Wherefore returning to possessions left [Page 24] or bequeathed, we must obserue, that by this law the Church is not denied to holde all that which is giuen or bequeathed vnto it; the which, though they haue not in proper kinde, yet haue they the price, which is equall to the thing.

It would peraduenture be from our purpose, to adde hereunto, but very briefly, that it would be as euill, as profit­able, for the Clergie to possesse superfluously; for by this meanes they haue forsaken Gods seruice, which they haue in charge to prosecute; and in the Ecclesiasticall lawes there is an whole title to this effect: In decretal. Ne Clerici, vel Monaci secula­ribus negotijs se immisceant: where it seemes, that the first chapter was particularly made to prohibit these present dis­orders: 2. Tim. 2. and S. Paul in a few words commandeth; Nemo militans Deo, implicat se negotijs secularibus, vt ei placeat cui se probauit. In Matth. hom. 26. There is a long discourse of S. Iohn Chrysostome, wherein he sheweth, That two maine inconueniences pro­ceed from the riches of the Church; one, That the Laitie by that meanes cease from giuing of almes; and another, That Clergie men, leauing their cures, which is the cure of soules, they become Proctors, Economists, and Tole-gatherers, practising things vnbeseeming their Ministerie.

The Clergie sometimes with grieuous complaints doe vrge, That they are forbidden that which is permitted to all other sorts of men, euen vnto the vilest and most infamous; as if they were of worser qualitie than they. To which we may answer: First, that euery thing is not conuenient for euery body: and it is no consequent, though one thing be granted vnto others, that therefore it should be permitted them also. Souldiers and Gentlemen are suffered to goe ar­med; should the same be likewise permitted vnto them? And the same not being granted, may they iustly esteeme themselues herein iniuried, and that they are worse intreated than all others? when if any body in the Common-wealth possesse more than his part, it is conuenient he should pur­chase no more. Nouell. extrau. Constantinus, Porfirogenitus, Romanus & Basili­us, Emperors of Constantinople, made laws, that the Patritians [Page 25] and Senators, Bishops and Monasteries, might purchase no­thing of their inferiors by sale, donation, or testament, to pre­serue that necessary member of the Common wealth: and so may the Senat make another law vpon the goods of the sub­iect, conuenient for their good gouernment, when need re­quires: and so they haue done vpon Ecclesiastical persons at this present, because the bodie of the Common wealth must be kept in such temper, to the end that any one member ex­ceed not his due proportion, & that the bodie by this means become monstrous; and taking to it selfe more nourishment than is requisit, it may preiudice the other members, in a­bridging them of their allowance; and so of it selfe not be­ing able to digest this superfluitie, it comes to be possessed with euill humors, whereupon, first infirmitie groweth to it selfe, and afterwards corruption to the whole bodie. But the Ecclesiasticall State in this dominion, is a member which may be thought to be an hundred part of the whole number of inhabitants, and yet hath drawen vnto it selfe a portion of the goods, not proportionable to the same: for in the terri­tories of Padoa they haue more than a third part; in the pre­cincts of Bergamo more than the halfe: and there is no place where they doe not enioy at least a fourth of the goods and wealth; and if they were suffered yet still to purchase, there is no doubt, but in time they would be Lords of the whole countrey, leauing all others poore and naked, yea, euen slaues, and cutting off the Seculars from all sustentation and nourishment.

The time and place present require a law, which may pro­hibit such an excesse. In ancient times, when the State Ec­clesiasticke was gouerned after the same maner as the blessed Apostles instituted it, and the holie Fathers after their ex­amples prosecuted the same, it was then very profitable that it should possesse much; and in the bodie of the Common-wealth it was like the stomacke, which receiued indeed all the meat, but so it digested little for it selfe, and much for o­thers. And thus the Clergie possessing much, and partici­pating [Page 26] but sparinglie of the profit of the incomes it selfe, but distributing all the remainder in almes deeds, they were very emolumentall to the Common-wealth: for the which rea­son also, euery one laboured to powre vpon them goods and possessions, because the more they had, the more it redoun­ded to publike vtilitie and profit, in which the Ecclesiasticks were Gardians, and Procurers for the poore and needie; so that from this no monstruositie was deriued, goods Ecclesi­asticall being as common goods, which gaue nourishment and increase to all the whole bodie proportionablie, and not to one part alone. But this laudable custome now being come to an end, the substance and goods conueyed ouer to the Church, surmount in measure and equalitie; and this is too disproportionable for the body of the Common-wealth, which would finde a great discommoditie, if it should fur­ther augment: neither could it be well gouerned, but of ne­cessity either it must be reduced to his true measure and pro­portion, or els the ruine of the whole bodie must succeed. And though we haue spoken of Ecclesiasticall goods, as common to them all, yet is not the possession thereof e­quallie diuided amongst them; nay, and which is more, the fourths of the Religious liue not vpon the Church reue­newes, but vpon almes, and secular mens deuotions; the possessions and reuenewes lying in the hands of a few of the Clergie, which scarsely amount to the fourth part of them. And that which more importeth, is, that the moitie of these inhabit out of the State, and yet these hale vnto themselues all the reuenewes, with most euident losse and preiudice to publike seruices and emploiments.

Ad fra. in er [...]m. ser. 52.And if in better times, when men thought more on hea­uen than on the world, and when the Augustines flourished, who refused such inheritance as was left vnto the Church, by depriuing of their owne children, there was such pur­chase made; what would fall out in these our after dayes, there now liuing a number, who with deuices and deceits la­bour still; for out of doubt it is to be feared, that in two or [Page 27] three hundred yeeres, their purchase will grow to that height, as they will become Lords ouer all. There are Mo­nasteries which haue beene now built this three hundred yeeres, and yet haue they not the fourth part of the reue­newes which some haue that were built within these fortie yeeres. Now there are diuers Religious orders, which are prohibited to possesse any thing stable; the which if it were remooued, which in probabilitie might easily be done, be­cause we see as much done by foure most numerous orders, besides some other minors; let any man that hath iudge­ment but imagine, what purchase in a moment would be made.

Many things in their beginnings haue beene good, which altering with time become most pernicious. The purchase of the Clergie men, which was excellent in the beginning, is fallen by foure degrees, vnto this present State: First, Act.... the possessions were sold, and the Clergie and poore were main­teined of the price: Afterwards they studied how to retaine the freehold, and to mainteine the poore of the incomes: Thirdly, there was distribution made of it, into foure parts; one for the Bishop, the second for the Clergie, c. futurum &c...... the third for the building, the fourth for the poore. Now there is a staie of the profits, and an opinion start vp, which by all the Di­uines & good Canonists, was euer reiected: that, c. concesso. Clerici sunt Domini fructuum: although the sacred Canons and holy Fa­thers haue euer constantly preached, that the Ecclesiasticall goods belonged to the poore: For which cause also the sacred Councell of Trent: Omnino interdicit Episcopis, ne ex reditibus Ecclesiae, consanguineos, familiare sue suos augere stude­ant, cùm & Apostolorum Canones prohibeant, ne res Ecclesiasti­cas, quae Dei sunt, consanguineis donent. Sed si pauperes sint, ijs vt pauperibus distribuant. And a little vnderneath; Quae ve­rò de Episcopis dicta sunt, eadem non solùm in quibuscun (que) bene­ficia Ecclesiastica tam saecularia, quàm regularia obtinentibus pro gradus sui conditione obseruari, sed ad S. R. E. Cardinales per­tinere decernit.

And Ecclesiasticks should not so sinisterly interpret a law made for a publike necessitie, it being so conformable to e­quitie and iustice, and say that it was made to make them in­feriors to base and illiberall men: they might rather haue said, it would be farre better that they would liue conforma­ble to the Apostles. But will they then peraduenture al­ledge, Act. 4. that the Apostles themselues selling all their possessi­ons & distributing them to the poore, were of worser quality and condition then the most infamous sort of men? Shall so many fraternities of Regulars, which possesse nothing, be reputed infamous or vile? And if they answer that they doe thus voluntarily, it may be replied, that voluntarie or not voluntarie, make some difference indeed, about the being meritorious or vertuous, but not about the being honora­ble or base: For this purpose there is a Canon worthie of consideration, De consec. di­stin. 1. c. vasa. wherein it is said: Bonifacius martyr & Epis­copus interrogatus si liceret in vasculis ligneis sacramenta con­ficere, respondit, quondam sacerdotes aurei ligneis calicibus vtebantur, nunc è contrario lignei sacerdotes aureis vtuntur ca­licibus.

But let them be contented willingly with that which they haue, which is so far aboue their share; and so we shal quick­ly be at a point. The example of Moyses is worthy of imi­tation in chap. 36 of Exodus, who hauing exhorted the peo­ple to offer vp gold, siluer, and other precious things for the building of the Temple, when there was more offered then was conuenient, he appointed by a publike proclamation, that no body should offer any more. And we may adde vn­to all this, an other reason also; If by these lawes the Eccle­siasticall libertie were infringed; then by the Lawes Pontifi­call also, which prohibite the Ecclesiasticks to alienate any thing to Seculars, the Secular libertie should be iniuried, and by this meanes they might make Lawes, to take away other mens libertie, and they might not doe the like againe vnto them: and this reason is so much the more preualent, in that Laie possessions though they might not be passed ouer to [Page 29] the Clergie, yet the price thereof might be conueied, and with licence the goods themselues by a iust sale; but the Ec­clesiasticks can not alienate vpon any gratuite bargaine whatsoeuer, nor sell, nor change, but with good gaine and aduantage; and if the Seculars which haue more reason, complaine not of this, why should they grieuously complain for a matter of farre lesse consequence? I will finish this point with this saying; That before the yeere 400 of our sauing health, Valentinian, Valent, and Gratian made a Law; C. Theod. de ep. & cler. l. 20. That the Clergie might not purchase any thing of women; the which law was also put in vre by Saint Damase Bishop of Rome in those daies when it was published, it being openly proclaimed, and also for a long time after it was obserued in Rome; and S. Ierome who makes mention of it in his Epistle to Nepotianus, saith, he found no fault with the law, because the Clergie had worthily deserued it; but onely he grieued at their auarice, which had giuen Princes iust occasion to make such an one. There was such a like law also made in Saxonie by Charlemaine of famous memorie, which was long obserued and kept. In the yeere 1300, Polyd. l. 13. Hist. Anglicae. Edward the Third King of England, made a law precisely conformable to this, and though the Clergie resisted, yet was it for all that put in execution. De cont. t. d. 2. 140. l. 2. t. 8. §. Lodouicke Molina testifieth in the ordinances of Portugall, that there was a law made; that Churches and Monasteries might not, either by sale, donation, or succes­sion, purchase any thing stable, to the end that Ecclesiasti­call reuenues and possessions might not immeasurablie en­crease, to the preiudice of the Laietie; he further adding, that in other kingdomes of Spaine also the same law was in force. Certaine it is, Petr. Bolug. in spe princ. R. 13. C. that Iames king of Arragon constituted in the kingdomes subiect to that Crowne, that Realenco goods (for so they tearme them which hold in capite, or pay any thing to the King) might not be demized ouer to the Clergie without the Kings licence. In France the same law was enacted by S. Lewes, which was a strange matter, and afterwards successiuely confirmed by Philip the Third; Phi­lip [Page 30] the Faire, Hen. 17. c. by Charles the Faire, by Charles the Fift, by Frances the First, by Henry the Second, by Charles the Ninth, and by Henry the Third. And yet the Common-wealth of Venice, now three hundred yeeres since, hauing made the same law for her Citie and Duchie, we can say no lesse, but that the extention of the same ouer her whole State and Do­minion, is an innouation, seeing Saluius Guilianus answers; Omnes debere sequileges & consuetudines vrbis Romae, as the Emperour Iustinian reporteth; C. de vet. iur. enuel. §. sed etsi. And in Sicilia the yeere 1296 King Fredericke (as it is written in the Capitular of that king­dome) made a law of the selfe same forme that the same of Venice is, in the yeere 1536, but that it giues the respite but of a yeere onely.

Pius Quintus in like maner in the towne of Bosco, where he was borne, hauing built there a great Monasterie, because the towne might not come to decay, he prohibited for euer the Clergie, to buie any thing of the Laietie: and Clement the Eight perceiuing how much the house of Loreto pos­sessed, for preseruation to the Laietie, he forbad them to buie any more. And in Genoa also, there is a generall Con­stitution, that all goods should be tied to the Common-wealth, so as they might not be alienated to the Clergie. Peraduenture some will answer; that Pope Clement made such a law, as a temporall Prince, hauing first asked leaue of himselfe, as he was Pope, to doe so. A very profound con­sideration indeed, but yet not conformable to the solide, morall, and diuine doctrine, which teacheth that God ha­uing giuen the gouernment of a State to him that is Prince thereof, with independent power in things temporall, he hath also giuen him authoritie of himselfe, and without the licence and permission of any body else, to make all those lawes which are necessary to maintaine it.

We neuer finde that God made any precept or comman­dement, which to performe we must needs haue leaue of an other. In things indifferent, or good, so they be liberall and free, it may so occurre, that an error may be cōmitted against [Page 31] the superiors will; but for those which are expresly com­manded by God, that which S. Peter sayth, doth touch them neere: Obedire oportet Deo, magis quàm hominibus. Act. 5. If God sayd to a Prince, Make those lawes which are necessarie for publike peace and tranquillitie; and if thou failest here­in, I will be offended with thee; and yet we must needs haue licence to obey him, and licence being required, whereas without, non licet: shall not then that which God commands be lawfull? Nature in all her finall drifts giueth also such fa­culties and powers as are necessarie for the atteining to the same; and shall God set downe an end and commandement which can not be executed without the fauour of men? This is too great an inconuenience. But let vs returne to the matter of the same law, the which as it is in it selfe no new in­uention, so the most famous Ciuilians haue discussed of the same, and defended it for iust; and amongst others, there is Baldus, the Archdeacon, the Abbat, Signarolus, Alexander, Bal. c. qua in ecclesiarum, c. ecclesia S. Ma­riae de constit. Arch. c. R ma­na, de app. 16. Abb. l. 1. cons. 63. Signorolus cons. 21. Alex. cons 93. Barbat. l. 2. cons. 14. Crotus l. 1. cons. 5. Tiraq de re­tract consang. §. 1. gl. 13. Gail l. 2. cons. 32. Capit. de fac. pol. l. 3. to. 1. Barbaccius, Crotus, Tiraquellus, Gaelius, Renatus, and Copi­nus; by reading of whom euery one may plainly discouer, whether this were any sufficient cause, against which to pro­ceed with censures, and the principallest points in such a sen­tence not hauing beene duly obserued. Whereupon it will not be altogether vnprofitable to deliuer some thing also a­bout the order obserued by the Pope herein, to the end that we may plainly see how many nullities passed in the manage­ment of such a businesse; of such a iudgment or censure I will not say, because wanting all substance thereof, it can not so iustly be tearmed. The Diuines say, That an vniust sen­tence may well appeare externally to be a iudgment, but in it selfe truly it is not so: as also, That euery vniust iudgment is of it selfe nothing; and That an indirect iudgment is no more a iudgment, than a dead man is a man. But what? we see in it a plaine formall defect, and this of that substance, as it makes it altogether immomentall. First it was declared, without any citation preceding, That the old and new lawes, of not alienating of goods, and building of Churches with­out [Page 32] licence, are against the authoritie of the Apostolike See, and of Ecclesiasticall liberty, and that the Law-makers them­selues haue herein incurred censure; and yet it is an appa­rent point in all the Ciuilians, That citations are de iure natu­rali, and also very requisit in all causes declaratory. The which may well serue for a nullitie of the aboue-mentioned Breue, and of whatsoeuer hath beene prosecuted in vertue of the same. But that so many godly men alreadie dead in Christ, and which haue alwayes communicated with the Popes of their times, should be denounced excommunicate; what is it els, but to condemne so many of the Popes predecessors, and to auerre, that they discharged not so well their care of soules as they ought to haue done? And I assure you, a­mongst them there were diuers Popes of singular vertue and pietie.

The Pope yeelds a reason, why he determined to proceed against the Common-wealth, saying: Cum praetermissi officij nostri, & causae Ecclesiae desertae à nobis rationem extremo Iudicij die exigi à Deo nullo modo velimus; neque enim existimetis nos qui alioquin pacis & quietis publicae cupidissimi sumus, omnes (que) nostros cogitatus eò intendimus, vt soli Deo interuenientes rem Christianam, quantum possumus, pacatè gubernemus, qui (que) om­nium animos, praesertim maximorum Principum, nobiscum ea in re consentientes esse optamus, si aliquando Sedis Apostolicae autho­ritas laedatur, si Ecclesiastca libertas, & immunitas impetatur, si Canonum decreta negligantur, Ecclesiarum iura, & Ecclesiasti­carum personarum priuilegia violentur, quae muneris nostri sum­ma est, id aliquo modo dissimulaturos, aut officio nostro defuturos; hac verò in re id vobis persuasum esse volumus, nos nullis huma­nis rationibus moueri, aut quiddam praeter Dei gloriam quaerere, aliud (que) habere propositum, nisi perfectam, quoad eius fieri possit, Apostolici regiminis functionem. And surely his H. not with­out iust cause, may well feare a iudgement diuine, hauing offended in his Pastorall office, because God threatneth by Ieremias: Veh Pastoribus qui dispergunt, & dilacerant gregem pascuae meae, dicit Dominus. Ideo haec dicit Dominus Deus Israel [Page 33] ad pastores qui pascunt populum meum, dispersistis gregem meum, & eiecistis eos, & non visitastis eos: Ecce ego visitabo super vos malitiam studiorum vestrorum, ait Dominus. And to the peo­ple he promiseth: Dabo vobis Pastores iuxta cor meum, & pascent vos scientia & doctrina. For this is most certeine, that the very summe of all Pastoral charge consisteth in the prea­ching of the Gospell, in holy admonitions and instruction to Christian conuersation, in the administration of the Sa­craments, a care ouer the poore, and in the punishment of such offences as absolutely exclude vs out of the Kingdome of God: these being things which our Sauior Christ recom­mended ouer vnto S. Peter, committing them to his charge; the which things only were practised by him, as also by the holy Martyrs his successots, and the holy Confessors also, which succeeded them from time to time; but not in such a maner, as the darknesse succeeds the light.

In the sacred Scriptures wee learne, that the glorie of God consisteth in the propagation of the Gospell, and in good Christian life; 2. Cor. 4. and in briefe (as S. Paul speaks) in the mortification of the externall man, in the life of the inter­nall, and in the exercise of charitable deeds. For if the glo­rie of God should lie in the abundance of Temporall goods, we might haue iust cause to be afrayd of our selues, seeing Christ hath promised to his nothing but pouertie, Iohn 15. persecu­tions, discommodities, and to conclude (as the same vulgar know very well) troubles and want are the true trials of the ftiends of God; Math. 8. and no man (sayth the Gospell) followes Christ, but after he hath taken vpon his shoulders his owne crosse.

That which by some one hath beene dispersed in diuers places, and to many persons, is very different from the do­ctrine of S. Paul; which is, 1. Cor. 15. That it can not be seene wherein this city can be so truly commended for religion; for though almes and charitable deeds towards the poore abound in the same, as also ornaments of the Church, and worship diuine; yet for all this, the very substance of a Christian consisteth in [Page 34] fauouring the Ecclesiasticall iurisdiction: and in Venice we see the contrarie to this. 1. Cor. 15. The saying of S. Paul is: Si tradidero corpus meum, ita vt ardeam, charitatem autem non habuero nihil sum. We reade in the holy Euangelists, that our Sauiour in the day of iudgment will demand an account of the wicked for not hauing vsed the works of mercy & pitie: Esuriui enim, & non dedistis mihi manducare: Math. 25. Sitiui, & non dedistis mihi po­tum: Hospes eram, & non collegistis me: Nudus, & non operui­stis me: Infirmus, & in carcere, & non visitastis me.

But so we need not to feare, that God will call vs to an ac­count for cutting off all libertie from the wicked to offend their neighbour; or that a part or portion of goods belong­ing to them, should be allotted to the Seculars: nay more than that, we may boldly giue all the goods of the Church to the poore, without any wayes offending of God therein.

Neither may we heere also omit to ponder a little the last words of that Breue, where it thus runneth: Quinimo, nulla alia ratione meliùs publica illa Christianae religionis incommoda, in quibus euitandis tantopere insistitis, longe à vobis propulsabitis, quàm si Ecclesiarum, & Ecclesiasticorum, qui pro vobis dies ac noctes excubant, & assiduas ad Deum preces effundunt, immu­nitates & iura (prout religiosos & pios viros decet) conseruaue­ritis.

The Common-wealth questionlesse hath need to be assi­sted with the Clergies prayers, for which cause she dayly re­commendeth herselfe vnto them, as vnderstanding well what the Wise man sayth: Eccle. 21. Deprecatio pauperis ex ore vs (que) ad aures perueniet. And they grieue, when as but few intend­ing these holy actions, by their euill example, they are an occasion of great transgression in the Laitie: whereupon in stead of pacifying diuine Iustice, and mouing him to mercie towards vs, they rather stirre vp the more Gods wrath to punish vs, by the meanes of Infidels and miscreants. And we must not beleeue that the prayers of the fortunate and rich are aptest to appease his Maiestie diuine, of whom it is written: Psal. 21. Non despexit deprecationem pauperis: considering [Page 35] that then a number of Monks and Hermits, which did and do liue in great pouertie and humilitie, had done and do ve­rie euill therein, they being otherwise of a firme beliefe, that in such a State their prayers will more easily ascend before the presence of God.

But now it is high time to passe ouer vnto the third point in controuersie; the which consists in the matter of sen­tencing Ecclesiasticks, the which subiect must distinctly be entreated of, seeing the Breue vpon this argument was also presented at an other time. Peraduenture diuine Proui­dence heerein had a hand, that an error should be commit­ted by one of the Popes ministers, whosoeuer it were, in pre­senting of the Breues, to the end his holinesse might haue some time better to weigh of what moment the affaire was, which he then tooke in hand; but notwithstanding this, his Ho. forbare not expresly to command, that the other Breue vpon the two prisoners should be presented, as it was on the 25 of Februarie, with this superscription; Marino Grimano Duci, & Reipublicae Venetorū: although his Ho. was priuie to the death of that Prince, which had fallen out two moneths before, and he had procured congratulatorie offices to passe betwixt him & this renowmed present Prince his successor. Some Canonist peraduenture may defend this action with their doctrine; Papa est iudex viuorum, & mortuorum; but ra­ther we may suppose he imagined thus, that the selfe same dignitie remaining, the change of persons was of no great importance; in which point notwithstanding, the Canonists are quite opposite against him, who are of opinion, that in treating of censures, it being tearmed an odious subiect, the words ought most strictly to be construed: so that if he pre­tend this present renowmed to be sufficiently admonished thereby, they will no waies grant it him; for euen in this re­spect he hath proceeded against him, without obseruing a circumstance very material in iudgments, which is, a cita­tion for the declaration, and an admonition for the censure. We must hold this for infallible, that if the Pope had but [Page 36] duly regarded the reasons whereupon the Common-wealth of Venice groundeth her authoritie for iudging persons Ec­clesiasticall, he would neuer haue mooued one word about the same; but seeing he would not discusse nor heare the reasons of the same Common-wealth, with that patience, maturitie, and charitie, as was expected from his Ho. as be­ing the generall Father of all Christendome: no maruell though he blame the iudgements of the Common-wealth, affirming them to be grounded vpon vse and naked cu­stome, and vpon some Pontificall Breue. The Senate made answer to the Popes Breues in few words, and that they won­dred how new cause of controuersie daily grew, and he at­tempted to shake those foundations vpon which their liber­tie had beene grounded, for the space of a thousand two hundred yeeres. For euen from the cradle and swathing clouts of the Common-wealth, their predecessors receiued authoritie from God, to punish any kind of delinquents, the which they haue continually put in practise to the honor of his diuine Maiestie, with publike peace, the approbation of his H. precedents, and vniuersall commendation and praise. Of custome there was no mention made, considering that their power was much more firmly and deeply rooted, then vpon an vse, though neuer so immemorable, because they held this doctrine of the best Diuines and Canonists for vn­doubted, that the exemption of persons Ecclesiasticall from the Secular Courts, vpon offences not Ecclesiasticall but Temporall, or as Iustinian saith, ciuill, comes not De iure diuino, but through the priuiledges of Princes; except one should be so madde as to take the signification of these words, ius diuinum so largely, or abusiuely, as to extend them to ius humanum too.

This doctrine, that if the Clergie were not by some fa­uour or priuiledge exempted, they were to be subiect to the Secular Magistrate, it is declared and confirmed by exam­ples in the old Testament, where we may see, that all Kings haue commanded, iudged, and punished Priests; and that [Page 37] this was not performed by wicked and reasonable good Kings onely, but by those also most holy and godly, Dauid, Salomon, Ioas, Ezechia, and Iosia; and in the Gospell we finde it precisely in the words which our Sauiour Christ deli­uered vnto Pilate, Non haberes potestatem aduersus me vllam, Ioh. 19. nisi tibi datum esset de super; vnto which we may adde that (if one would but make an extrauagant construction thereof) the exposition of S. Augustine, S Bernard, & Gaietano is, Super Ioh. tract. 116. Epist. 42. in 2. q. 62. a. 1. Act. 25. that Pilats iudgement was indeed very wicked, but not vsurped; and besides this, we haue a confirmation also thereof in the example of S. Paul; who doubting lest that Festus vnder pretext of iudging him at Ierusalem, would haue deliuered him into the Iewes hands, he appealed to Caesar; which he would neuer haue done, if he had not beene his lawfull Iudge, it being a mortall sinne to appeale to him, that hath no lawfull power nor authoritie to be so appealed vnto. A moderne writer makes a profound consideration heereof; which is, that S. Paul would haue appealed to Peter, but he did not, because it would haue beene reputed in him a great follie; a consideration surely worthie of a perspicuous and deepe vnderstanding, but yet not beseeming the reso­lute constancie of S. Paul, that he did forbeare to speake a trueth for feare of being thought a foole: He had not this respect before Festus, and he ceased not to vtter those words vpon which the Prefect answered him; Insanis Paule: and S. Paul himselfe then said; Act. 26. 1. Cor. 1. Nos praedicamus Iesum Christū Cru­cifixum, Hebrais quidem scandalū, gentibus autem stultitiam; and yet for all this, he desisted not to speake and preach that which he knew to be reputed follie: let not this therefore in any wise be iniurious to S. Paul, seeing doubtlesse that most holy & exemplar Apostle neuer deserued it. And what can we say to the precepts of S. Peter, & the same S. Paul, 1. Pet. 2. which are Subiecti igitur estote omni humanae creaturae propter Deū, siue Regi quasi praecellenti, siue Ducibus tamquam ab eo missis ad vin­dictam malefactorum, laudem verò bonorum, quia sic est voluntas Dei? and of this, admonet illos Principibus, ad Tit. 3. & Potestatibus [Page 38] subditos esse dicto obedire? as also that which we finde written in the 13. chap. to the Romans, which may serue euen for a Sunne, to dissipate the clouds, of whatsoeuer error or doubt: Omnis anima potestatibus sublimioribus subdita sit: non est enim potestas nisi à Deo quae autem sunt, à Deo ordinatae sunt: ita (que) qui resistit potestati, Dei ordinationi resistit; qui autem resistunt, ipsi sibi damnationem acquirunt: nam principes non sunt timori boni operis, sed mali. Vis autem non timere potestatem, bonum fac, & habebis laudem ex illa, Dein. Minister est tibi in bonum: si autem malum feceris, time, non enim sine causa gladium portat, Dei enim Minister est, vindex in iram ei, qui malum agit; ideo necessitate subditi estote, non solùm propter iram, sed etiam propter conscientiam: Ideo enim & tributa praestatis, ministri enim Dei sunt, in hoc ipsum seruientes: Reddite ergo omnibus debita, cui tributum, tributum, cui vectigal, vectigal, cui timorem, ti­morem, Expos. ad Rom. num [...]. 72 super Episto [...]m ad Rom. Hom..... in expos. cui honorem, honorem.

Looke in S. Augustine, for he putteth himself also now into the number of those which are subiect to the secular Prince; obserue Chrysostome, Theodoret, Theophylact, and Oecmenius, who with very manifest and plaine words include within this compasse, Apostles, Euangelists, Prophets, Priests, and Monks. Read S. Thomas vpon the same place, and you shall see how he most cleerely affirmeth, that all Eccle­siasticall exemption grew from Princes their priuiledges. ep. 42. But S. Bernard, yet somewhat more perspicuously affirmeth the same, writing thus to an Archbishop; Omnis anima pote­statibus sublimioribus subdita est, si omnis, est & vestra: quis vos excipit ab vniuersitate? si quis tentat excipere, conatur decipere. Let these Opponents but well consider, whether euer any of the ancient holy Popes, Bishops, or other Priests affirmed, that they were exempted from the authoritie of Princes and Magistrates; and I know they shall not finde one: but so they may well finde that euery one hath confessed this subiection, denying onely the iustice of the cause for which they were condemned.

We haue a famous example of this in Polycarpus Bishop [Page 39] of Smirna, and disciple to S. Iohn the Euangelist, one of the excellent Founders of our faith; whose words reported by Eusebius, are these: Magistratibus enim, Iuseb. 4. c. 4. & potestatibus à Deo constitutis eum honorem, qui nostrorum animorum saluti nostrae (que) Religioni nihil affert detrimenti, pro dignitate tribuere docemur. Some say, that the Apostles were enioyned obedience vnto Princes while they were Heathens, but not after they be­came Christians; and this was, by reason that the Clergie in respect of their holy Order, and the spirituall authoritie that they retaine, are greater. But these men S. Iohn Chrysostome answereth in a few words: Si enim Paulus cum Gentiles adhuc essent Principes, praecepit, multo magis oportet & fidelibus exhi­bere, quod si maiora tibi concredita esse dixeris, disce non nunc ho­noris tui tempus esse, peregrinus enim hic es, & aduena, tempus erit cum omnibus apparebis illustrior, nunc vero vita tua abscon­dita est cum Christo, in Deo; quando Christus comparuerit, tunc & vos comparebitis in gloria.

Who is it that may well doubt, but that Ecclesiasticall ex­emptions haue beene the priuiledges of Princes, when the selfe same lawes and priuiledges are extant? and we see they were not granted all at one time, but by little and little; the which I will set downe according to their times, because it greatly importeth for any mans satisfaction, that desires hereof to be certified.

Constantine the Great, about the yeere 1315, C. Theod. de epis. & cler. l. 2. ibid. l. 10. exempted the Clergie from publike, personall, and Court seruices; Constance and Constante his sonnes added heereunto an ex­emption from all illiberall and sordid actions, as also from impositions; and they priuiledged Bishops onely from the arrests of Secular Courts, ibid. l. 12. all others of the Clergie still remai­ning vnder the Secular Iudge, aswell in cases criminall as ci­uil: and about this there afterwards were enacted two lawes, one by Valente and Gratianus about the yeere 380, ibid. l. 23. ibid. l. 37. ibid. l. 41. ibid. l. 47. and ano­ther by Arcadius and Honorius in the 400; but then much about the yeere 420, Honorius, and Theodosius the second, and after that the same Theodosius, with Valentinian the third, [Page 40] put ouer the triall of the Clergie to the Bishops, so both parts are well content, and if one of them would not accept of the Bishop, C. de episc. & clo. l. cum cle­rici, C. eod. l. omnis qui. referring them then ouer to the Secular Ma­gistrate: the which was also confirmed by Martian in 460, and by Leo his successour: finally, by Iustinian about the yeere 560: all difference and varietie was remooued and ta­ken vp by a law of this import, Nouell. 83. Nouell... That the Clergie in ciuill cau­ses should be subiect to the Bishop, and in criminall to the Secular Iudge; the which continued in force til 630. When Heraclius further exempted them from the Secular Magi­strate, as well in cases criminall as ciuill, yet euer reserued en­tire the Princes immediate Deputies and Substitutes. And thus it was obserued while the diuision of the Empire; as al­so after the same maner and fashion the Greeke Church con­tinued as long as that Empire lasted.

But indeed in the West the French Emperours and Sax­ons, with the Kings of Italie, they haue diuersly obserued herein; sometimes committing of iudgements to the Cler­gie, and otherwhiles sentencing not only Priests and Bishops, but euen the Popes themselues; one while referring them in part to be iudged by the Spiritualtie, and in part by the Magistrates, according as the alteration of times permitted; at one time the Popes authoritie preuailing, and at another the Emperours. And at last, Fredericke the second, about 1220, made an authenticall insertion into Iustinianus his Co­dex, That no man might bring any ciuill or criminall Clergy man before any Secular Iudge; and whosoeuer readeth the titles Episcopis, Auth. C. de episc. & cler. l. statuimus. & Clericis, & de Episcopali audientia, vel de Episcopali iudicio, in Theodosius and Iustinianus his Codex, he may finde all these lawes, and be fully informed, how Eccle­siasticall exemption hath beene a benignitie and fauour vouchsafed by the Emperours; as also they shall be certified, that though they granted exemption to the Clergie from the power of their Magistrates, yet did they neuer except a­ny from their owne highest and supreame power. The pow­er of punishing whosoeuer offendeth against the lawes, is so [Page 41] annexed to all principallitie, as it is indiuiduall from the same: and to say that a Prince hath one in his State not sub­iect to him in causes temporall or any other concerning publike good, it implieth so much, as if he were not a Prince. A naturall bodie could not comport, that there should be in it any one member not allotted to the seruice of the whole and entire; much lesse can a ciuill bodie endure, that there should be a man in the middest of it, that did acknowledge any other but the Prince, in humane and temporall things. The Pope himselfe, in things spirituall, exempts whom he lists, from Bishops and Archbishops, but from himselfe, he can priuiledge none, without desisting to be Pope. The Venetian Common-wealth being freely begun, and borne as it were, about the yeere 420, notwithstanding (as it vsu­ally falles out in all great States) not so expatiated in her be­ginning into so large and spacious dominion, yet hath it re­ceiued from God no lesse than other great Princes in their mightie Empires, authoritie and power ouer any person, li­uing within her dominions; and the same Common-wealth hath suffered the Clergie to enioy the same priuiledge from Magistrates, as they were granted from time to time in the townes and cities of the Empire; being contented to punish in them those exorbitances, which being vile and enormi­ous, might be a disturbance to publike peace and tranquilli­tie: and there remaine Records of Ecclesiasticks punished for all sorts of offences, and sometimes for such as would now be counted but slight, but yet in respect of some parti­cular circumstance, deseruing worthily to be punished by the Common-wealth. And though the Popes of Rome, since the yeere 1160, C. at si clerici de iudi. C. clerici eo­dem. C. cum non ab homine eod. C. qualiter & quando eod. haue made diuers decrees for the priuiledge of Clergie men, yet haue these beene receiued so absolutely in no place, by any Prince, neither beene able to effect, but that offences of high treason haue beene alwayes subiect to Secular iudgement. Thorowout all Italie they punish Ec­clesiasticall persons (without any warning) which goe not in their habits, notwhithstanding any exemptions or decrees [Page 42] Pontificall. In Spaine they do the like, vpon the wearing of armes, and diuers other offences. In France they distinguish betweene common and priuiledged offences, and only the former are referred to the Clergie, and the latter to the Se­cular Iudge.

And so in like maner, this Common-wealth hath diuided offences into those grieuous, and others light and little im­porting: those of no moment are put ouer to the Church, and those grieuous, committed to the Magistrates. And thus haue they alwayes proceeded in executing the iustice and libertie of their iurisdiction. I will not affirme, that this is only a custome, which being contrarie to a law, hath in tract of time worne out the vigor of the same law it selfe: for we doubt not, but that custome must not preuaile against the law of God and of Nature, though it had continued for many thousand yeeres; and we will readily confesse thus much, That if God himselfe had euer excepted persons Ec­clesiasticall, the act of any Prince whatsoeuer, decreed to the contrarie, would be but an vsurpation and offence against God. And further, to the former we will annex this also (by their fauours which say, That their priuiledge growes de iu­re diuino) That if it were so, the Pope could haue no power to bring them vnder, because Seculars should not then be ca­pable to put in practise that, by the Popes dispensation, which God had prohibited. God hath forbidden Secular men to say Masse, to confesse, and such like: the Pope can not by any of his dispensations beare them out herein. And if they tell me, that this is ius diuinum, indispensable, but the Popes is dispensable, not to argue or labour to shew the contradi­ction which is in saying ius diuinum, and yet dispensable by humane authoritie, Innoc. c. cum Apostolica. de sim. de priuil. c. quod quibus­dam de verb. signif. c. in bis. c. super qui­busdam. it may suffice to answer them: that all the meanes which may be obtained by a Dispensation from the Pope, may also be acquired by a custome, which may grow and propagate contrarie to a law: and if we should suppose the execution of Clearks to haue beene first ordai­ned by law, and also executed, and that afterwards through [Page 43] immemorable vse and custome, the contrary were prescri­bed; I say, it might lawfully be practised and put in vse. But in this our case, the vse and custome of the Common-wealth preceedeth any law which priuiledgeth ecclesiastical persons from Secular triall in enormious criminall causes, and no de­cree whatsoeuer, which the Church hath made, can preiu­dice them a whit. To which may be added, the secret ap­probation heereof in all the Popes, who seeing and knowing thus much; if they had not iudged it conuenient, they would haue reprehended it; and moreouer the expresse approba­tions themselues of Sixtus the Fourth; Innocent the Eight; Alexander the Sixt; and Paulus the Third; whose Breues are reserued in the secret rolles of Common-wealth, doe truely maintaine what she hath iustly constituted. The which Innocentius euidently declareth in his Breue, directed to the Patriarke of Venice, deliuered on the last of October 1487, in which intimating with what good reason the Com­mon-wealth did sentence Clergie men, not onely in those most horrible, but also in all other offences that were anie waies odious and vile, he vseth these words; Nos attendentes priuilegia ad bene viuendum dari non ad delinquendum, illa (que) praesidio bonis contra improbos esse debere, non autem malis ad no­cendum facultatem, &c. A matter which does not onely of­ten fall out in these our daies, but then also it was most fre­quent and vsuall, as Pope Sixtus the Fourth in his Breue to the Patriarch of Venice, deliuered the 2. of Iune 1474 testi­fieth in these words; Cogimur non sine cordis nostri dolore, plu­rima quae nollemus de personis Ecclesiasticis audire ex ista Ciui­tate, praesertim in qua saepè nonnulli aut monetas adulterasse, aut crimen loesae maiestatis admisisse dicuntur.

And if any man to prooue that priuiledges are de iure diui­no, should alledge the example of Constantine in the Councel of Nice; let him but reade it ouer againe well, and then tell me whether it make for or against his intention. Iustiman the Emperor his Nouels: the 3. 5. 6. 11. 123. 131. 133. 137. with abundant perspicuitie set downe, what exemptions were [Page 44] proper to Clergie men vnder that Emperour, and what they enioied before his time. If then in the beginning by the pri­uiledges of Emperours, and afterwards through some con­niuencie they haue obtained priuiledge; why should they so set vp their bristles when the Venecian Common-wealth saies: that though others in their State haue permitted that enormious crimes also in the Clergie, should be iudged by the Ecclesiasticall Courts, supposing and thinking that this might stand well with their gouernment; yet they neuer yeelded nor consented thereunto, as reputing it a thing contrarie to their publike peace and tranquillitie.

We might heere further alledge; that these exemptions are not grounded alike in no Dominion nor Kingdome; and he that does but read what the Cryminalists haue written, but especially Clarius in particular, l. 5. § fin. q. 36. shall cleerely see how diuersly in diuers places these priuiledges haue beene per­formed and practised; this being an indissoluble argument, that they are not de iure diuino: so as custome may ouerrule them, and that the Popes decrees vpon this point, haue not in all places beene receiued.

And heere it were also good to consider, that in the Breue of the 10. of December, this present Pope saith; a Canon and an Abbat are imprisoned: Personas in Ecclesiastica dig­nitate, constitutas. There might a thousand Papall Breues be produced to shew, that Cannonicatus non est dignitas: but at last spying this error in their Printed Monitorie, they haue excluded the Canon, and mentioned onely the Abbat, prop­ter personam, in dignitate Ecclesiastica constitutam; so that by this we may collect, that euen in the Popes Breues there may also be errors, especially when they are wrtiten with too much haste, which is an occasion they are not therein so considerate as reason requires. And yet there is some doubt whether these commendatorie Abbatships be dignities or no, in that the sacred Councell of Trent prohibiteth all Commendams: yet it greatly concernes this Treatise which we haue in hand, that it should be a dignitie, and that heere­upon [Page 45] the Pope may laie his foundation so as if it were a poore Priest vnbeneficed, the matter would not be so great. For the qualitie of the place is a speciall matter to make the priuiledge greater and more authenticall; considering it is most certaine, that there are orders appointed in the Church (such as the Sacraments are) iure diuino, amongst which Priesthood is the highest: but for these dignities of Abbats, Priors, Archdeacons, they haue beene brought in iure humano: wherefore if exemption and priuiledge were ex iure diuino, it would belong principally to the Priests, though they had no title at all; and not to certaine special & remarquable places, as they would haue it. And out of que­stion he that goes about to dissolue this firme knot of equity & reason, he cannot attempt it without pain and great labor. This argument requires the consideration of two qualities in the person of the Pope; the one of the Bishop of Rome; a Bishop of that particular Church, and the vniuersall head ouer all others; and an other, as he is Prince of that State, which he possesseth; for though at this present they are ioy­ned together, yet is it not necessarie that either the Tempo­rall Prince of Rome should be a Pope; as that the Pope should be a Prince. It boots not now to expresse when both these qualities were vnited, for it is peraduenture aboue foure hundred yeeres: and yet say it had so beene this eight hun­dred yeeres, this would not a whit disable our discourse; as Pope in the Citie of Rome, he hath there his Vicar or Vice­gerent, and in other cities vnder him, Archbishops, Bi­shops, and other Ecclesiasticall Rectors; and as a Prince he hath Ministers, Gouernors, Iudges, and others, who though they be partly Priests, yet as being Priests they doe not di­scharge those offices, and many of them also are meere Lay men. Now when any Ecclesiasticall Priest or Friar, commit­eth any enormious offence, we see, that the Bishops or those that discharge Ecclesiasticall places, doe not punish them, Three speci­all prisons so called. but rather Gouernors, Auditors, and such like. How often haue we seene Terre de noua, Corte Sauella, and the towne of [Page 46] Boloqua with other Lay prisons, full of Priests and condem­ned Friars; and that which importeth more then all the rest, during the Popedomes of Sixtus and Clement, there were Friars hanged, with their regular habite on their backs. This assuredly was but iust and necessarie, for otherwise the State Ecclesiasticall could not liue in peace. Wherefore other States are not free from this necessitie; and if his Ho­linesse would please to measure other mens occasions by his owne, he would not condemne Princes for punishing such Priests, as liue not like Priests.

And we must not suppose that in other States there is that perfection which is not in our owne; but rather we ought to giue an example of that in our selues which we de­sire others should be; for seeing the euil which ariseth of the contrarie, wee shall seeme to haue a feeling of others neces­sities.

I know well what answer will be made, and that is this; that the Pope hath concurring with him the two dignities before mentioned; the one of a Prince, and the other of chiefe Bishop; and therefore as a Prince, seeing it necessarie for the good gouernment of his State, that the enormious transgressions of the Clergie, should be punished by the Se­cular power; he demandeth leaue of himselfe as being high Priest, and as he grants it vnto himselfe; so he can likewise affoord it vnto others, if they request it by way of fauor; this is a medicine more insupportable then the disease, and hurt­eth the body more; & an answer which diuideth also things inuisible. Would it not be a more likely thing to affirme; that the Pope as he is a Prince, knowes how necessary it is for the good gouernmēts sake of a State, to punish with tempo­ral authority euerie one which disturbeth the peace, though he be one of the Church; but he not being able to discerne the occasions of other Princes and States, nor consenting to the authoritie which they haue from God, he only takes no­tice of his owne proper authority, as he is a Pope, for which cause he would also haue an hand in there gouernments.

Heere some obiect, saying; all punishment is for the cor­rection of a malefactor; otherwise, if it haue not reference to so good an end, it may rather be tearmed a tyrannicall act: and the correction of euery offender pertaines to his superior. Wherefore it toucheth not a Prince greatly, whe­ther an ecclesiasticall delinquent be punished or no; let him in Gods name looke to the punishment of the Laietie; for if Clergie men be not chastised, the Prelats must giue an ac­count thereof vnto God. And surely this reason should haue concluded very well, if the maior thereof had beene true, which is, that the punishment of a malefactor was the onely end of criminall iustice. It is an end indeed, but a secondary end, and the least of two, it being for a priuate benefit; but the principall is a publike end, and consisteth in two things; one, in maintaining of good customes and conuersation in the Citizens, and in the citie tranquillitie and peace; and an other is, that when any one vsurpeth ouer his neighbour ad­uantage or hard dealing, by afflicting and preiudicing of him against reason, by inflicting a proportionable punish­ment againe vpon the other, to reduce things to an equali­tie. When the Ecclesiasticall person, laying aside the feare of God and of the world, doth violate the lawes, he giues therein a publike offence, by being an euill example vnto the Lay man, who by such an imitation grow bad and wic­ked: and moreouer he instigates him whom he iniured, to seeke reuenge, with the subuersion of publike quiet and re­pose. It ought therefore to be a Princes speciall care, that offences may be punished; otherwise, by the reason aboue alledged, a Prince might neuer punish a stranger which should offend in his State, seeing he being none of his sub­iect he need not be carefull of his profit or good. A Prince doth punish a stranger, not as hauing in this a simple refe­rence to correction, but to defend his owne subiect from in­iuries, as he is bound, and to cut off all wicked example which might induce customes pernicious to publike peace. And therefore it preuailes not to say, If it be necessarie for [Page 48] publike good, that a Clergie man be punished, let the Prince procure him punishment from his Prelate, and so let him suffer the Lay Magistrate to execute the same.

For answer to which, we must obserue, that the Church, according to the sacred Canons, cannot punish in poena san­guinis, no not for the most grieuous and enormous offences that are committed; but the chasticements of the Church must be with censures of suspension, priuation, deposition, or penalties of degradations; or els they impose the profit­able penance of prayer, fasting, and other charitable deeds; and the seuerest sentence which they denounce, is, to con­fine one within a Monasterie, or some strait prison, there to performe perpetuall penance: of which notwithstanding, we haue not beene eie-witnesses in these our daies, vpon any offence, how hainous soeuer committed. And if some whiles they enioyne this penance for any long time; after re­lation made of the penitents humilitie, and his willing obe­dience, they quickly forgiue him, and readily receiue him to grace and fauour. And notwithstanding that it was Iustini­ans owne commandement, that offenders should be com­mitted to the Secular power; yet the common and receiued opinion of all Canonists is, that it is only to be performed in three cases; that is, in the case of heresie, of falsifying letters Apostolicall, and vpon conspiracie against their owne Bi­shop: for they rest, they affirmatiuely hold, That if a Clerke had committed neuer so foule or hainous an offence, yea, though he had killed the Pope himselfe, if he did but offer to vndergo due penance for the same, that he ought not to be degraded, nor deliuered ouer to the Secular Iudge, but to be confined to perpetuall prison.

From this qualitie and forme of iustice it followeth, that Clergie men would readily transgresse the lawes; for they feeling more profit and pleasure in their offence, than losse or paine in the punishment, they make choise rather of this chastisement, it being of them more lightly esteemed, than to be depriued of their proper lusts and appetites: and so, [Page 49] being in no feare at all of their liues, (a thing, that for the most part doth most bridle and terrifie all malefactors) and hoping, though some Ecclesiastical penalties be imposed vp­on them, to take vp the matter againe quickly, they make it lawfull without any law at all, to enter into any flagition: as also Ecclesiasticall Courts punish not those offences most which disturbe publike tranquillitie, but rather those which abridge and infringe their owne interests. For the falsifica­tion of letters Apostolicall, or a conspiracie against a Bishop, which are the cases (as was aboue said) for which degradation was instituted; these touch not the Laity so neere: but pro­ditions, high rreason, falsification of coine, man-slaughter, for which they would impose their Ecclesiasticall penance; these are the enormities which for the seruice of publike qui­et and peace should be punished with rare and exemplar se­ueritie. And certeinly a Prelate which gouernes his Clerks, can not well do any act, but that which will haue most refe­rence to themselues only, & their owne benefit: neither can he respect the profit of the whole common wealth in punish­ing of his priests, euen as an housholder doth punish his sons & seruants, but with a respect to the good of his owne house only. The executions and chastisements of Princes only, and their Substitutes are directed, and truly tend to common be­nefit, which is his reall and true end. To say that a Clerke should be punished by his Prelate for hainous offences, which breake publike peace, it is no other, but to say, Let that punishment haue reference to the good of Ecclesiasticall Order; and for the Laitie, let them participate only of the preiudice which groweth from such offences as the other commit; and of the good which should arise from their cha­stisement, let them haue no part at all. And to speake bold­lie the trueth; Prelates neuer punish Priests for offences committed against Secular men, but vpon great instance made vnto them by the Magistrate, or for feare lest they should supplie the others default. And not without some reason: for their care is how to gouerne the Presbyterie, and [Page 50] not how to defend the Secular. But a Prince that receiues tribute and other seruices from his subiects, in defence of their liues, honour, or goods, he can not without sinning abandon them, when they are oppressed by their insolencie, who vnder colour of priuilege runne into all impieties, per­mitting that malefactours should scape vnpunished; or els to be chastised only with Spirituall penance: but the Prince is bound to punish them for preseruation of iustice, and the example of others; especially the same Prince being ap­pointed by the almightie Creator, as S. Paul sayth, Minister Dei Vindex in iram ei qui malum agit: wherein if he faile, he is also punished with depriuation of his State: Regnum de gen­te in gentem transfertur, propter iniustitias, iniurias, contume­lias, & diuersos dolos. And besides the offence vnto God, whereinto a Prince runnes by abandoning his subiects, and they wanting their due protection, other euils hereof ensue; all which do tend vnto publike ruine. Secular men thus in­ed by Priests in their liues, honor, or goods, & seeing them­selues depriued of that iust reuenge which publike authority performeth herein, they are with some colour of reason inui­ted as it were heereby to priuate prosecutions; and which is worse, fearing multiplication of wrongs, nor hoping for iu­stice at the Prelats hand, they go about to preuēt it with their own; and thus of one growes a thousand other inconuenien­ces, which procure sedition & grieuous disturbances in cities.

And for that which is further vrged in defence of Eccle­siasticall iudgements, That exemption from Lay Courts is granted to Clerks in honour of that Order, which being de­dicated to diuine worship, it is but reason it should be respe­cted. This is a thing which euery good iudgment will inter­pret quite contrarie: for if it be sayd in respect of him who hath committed the offence; first, he deserues not to be ho­nored; and S. Paul sayth: Vis non timere potestatem, bonum fac, & habebis laudem. For Socrates sayd very well: Vnhap­pie he is that sinneth, but yet much more vnhappie if he shun punishment. And it can much lesse be auerred in honour of [Page 51] the good, for they may be blemished by the companie of the wicked; and good men are most honoured, when they are without wicked companie. S. Paul aduised vs: Auferte malum de vobismetipsis, modicum fermenti totam mass [...]m cor­rumpit: so that if they, according to the rule of the sacred canons, by taking away of a wicked mans life, cannot exclude them out of their number, it will stand well with Eclesiasti­call dignitie, that their goodnesse being separated from the wicked by the authoritie of the Prince, it may remaine by this meanes the more pure and sincere, and therefore the more honoured. And we can not say, that any other liber­tie is taken from them, but a libertie of doing euill. By these considerations it is more then manifest, that the Com­mon-wealth of Venice makes no account of any extreami­tie, as by instituting of lawes, by administring that iustice which God by the power of a supreme temporall Prince hath put into her hands: neither hath she so deserued to be proceeded against with Ecclesiasticall censures; and so much the rather, because these thundrings haue come foorth with such expedition, that euery one which vnderstandeth the courses of Rome, may woonder from whence it shoud grow, that causes (yea and those sometime of small moment) conti­nuing in sute so longtime in Rome, that most of them end rather with the death of the parties, then by the Iudges sen­tence; and yet in a matter of such consequence, they haue proceeded not swiftly, but euen with precipice: For in the beginning of Nouemb. these matters were first mooued, and in fiue moneths it grew to such a furious resolution, as to ex­communicate a multitude of three millions of soules, and to interdict so great a circuit of ground and dominion, especi­ally when as with insupportable impatience they attended alwaies this short time with complaint, that some delay might be procured; and so to make vse of the time. And his Holinesse descended to such a resolution in making it onely knowne to the Cardinals, but without asking their opinion heerein, as commonly they doe, and principally in cases of [Page 52] waightie importance, and not without some grudging of the Court of Rome; he being otherwise accustomed, not onely to acquaint the Cardinals with such matters, but further to vse their aduice and consultation heerein. And af- that his last Breue of the 17. of Aprill, was decreed and prin­ted the same day, he deliuered it openly in the Consistorie, and proceeded immediately to intimation, and setting them vp: And in this also there is a matter of great wonder, for it being professed in Rome, that no bodie else may send for the Processe, and that great vigilancie should be vsed in obser­uing of the order, it running in euery mans mouth by way of a prouerbe; Omnis processus formatus exira Curiam, vt pluri­mùm est nulliu; yet in a matter of so great moment, he pro­ceeded without citation. But they say, that this is de iure na­turae, and they haue euer in their mouthes, Adam vbi es? & vbi est Abel frater tuus? and yet we see heerein this was not obserued. But if any man say, that the two Breues of the 10 of December, might serue for a sufficient citation, there are three things which contradict this: the first is; that those two first Breues of the tenth of December, are also tainted with this incurable disease: for in one of them declaring the nul­litie of the Senats lawes, and that they who made them, had incurred censure, they could not well come to this point be­fore a citation, to deliuer their reasons for the contrarie. Moreouer, admonition is one thing, and citation an other, as the Ciuilians very well teach vs; the one peremptorilie commands obedience, as in a matter already decided; and the other requires but a discussion to know whether it be well and necessarie, or that we are bound to obey: where­fore those Breues commanding a reuokement of lawes, and a consignation of prisoners, vnder peace, censure, and pe­nalties, they cannot be called citatorie, but monitorie: and it cannot be said, that they runne in the tenour of a citation, they hauing no expresse tearme, nor time set downe; but they enioined execution immediately. As also we cannot af­firme, that the Monitorie was conuertible into the nature [Page 53] of a citation, because it expressed the tearme of 24. daies; for by it the statutes of the Common-wealth were frustrate and inefficacious, not after these 24. daies expired, but euen at the day, of the 17 of Aprill: wherfore such alike annihilation cannot in any sort be conuerted into a citation. And so much lesse in respect of the rest, there wanting in the same, a clause iustificatiue, without which it cannot onely not be conuerti­ble into a citation; but further, the Monitory it selfe, ipso iure, is nothing, together with the excommunication, as Nauar­ra prooueth at large vpon the chap: Cum contingat; 8 causa nullitatis. And yet if we yeeld to all these defects, where ap­peareth any citation or admonition vpon the law of 1602? which men say concerned goods enfiteoticall; Rent charge. and which surely is more, vpon censuall goods or leases, for a long time; the which notwithstanding hath first place in the Mo­nitorie, and is annulled without so much as vnderstanding what the true meaning of it was, or with what reason it might be defended; if they had first, at least but heard some speech of it, or if some extraiudiciall discussion had beene vsed heerein, why this had beene somewhat; but that it should so suddenly and speedily be condemned, before it was conceiued or vnderstood, this is a great and most scan­dalous wonder.

It may be it is not so requisite to extend into a discourse concerning the desert of this cause of Enfiteusi, As in the be­ginning is mentioned. seeing such a notable error was committed euen in iudiciall place and calling: but because some peraduenture will desire to haue a summarie vnderstanding of the Common-wealths reasons heerein; it will not be much from the purpose, briefly to touch some of them, by which we may cleerely conceiue the lawfull authority which the Senate had for the iustifying of such a law; the necessitie that vrged them thereunto, and the equitie of the thing instituted, and so incidently we may discerne an error, which either purposely or by chance crept into the vnderstanding of the words, and cause of this law.

The Pope saies in his Monitorie, that the Duke and Se­nate [Page 54] on the 23 of May 1602, taking occasion vpon a con­trouersie occurring betwixt Doctor Francesco Zaberella, of the one part, and the Monks of Pragia of the other, they did not onely enact, that the Monkes either then, or in any time to come, ought not to pretend plea vnder any title whatso­euer, to be preferred to enfiteoticall goods, possessed by the Laietie, nor obtaine propertie in the said goods, by the claimes, prelation, consolidation, or extinction of direct line, or vpon any other title whatsoeuer, their direct right or freehold reserued; All these were in the beginning expressed. but that the force of this law also was intended and firmely to be extended ouer all other Ecclesi­asticall or religious places.

From this it cannot appeere whether his Holinesse repre­hendeth the order of the Senate; forasmuch as it extendeth to all places and persons Ecclesiasticall, which was decided, in the cause betweene the Monkes and the Doctors, appro­uing notwithstanding this foresaid decision, in a particular controuersie; or whether it may be construed, that he repre­hends together both the one and other: For granting that the Senate had lawfull power to end that sute, and to denie that they could ordaine by a generall law, that the same should be vnderstood and intended vpon any other such like case occurring, I cannot see how a man but of indifferent capacitie, can any waies conceiue it; considering it is a most euident thing, that it belongeth to the same power to make a law vpon an occasion, and to iudge particular controuer­sies occurring in the same. Polyt 3. Aristotle sheweth that iudgment is but a particular law, and the law a generall iudgement: and that it would be sufficient if a Iudge could be found without all partialitie; or the law would of it selfe be preua­lent enough, if it could comprehend al particular cases. And in Iustinians codex we see, L. 3. t 5. ne quis in sua. that iurisdiction comprehendeth two heads, that is, either iudicare, or ius dicere, the one per­taines to the instituting of that, whereon sentence may be grounded; and the other in pronouncing the same. In Rome the Proctors office was to make generall edicts, and to de­pute [Page 55] Iudges, who conformable to them, might giue sen­tence in particular causes. If the law were spirituall, and the Iudge Secular, it could not be vnderstood how he might iudge according to the same. Spirituall science, and worldly action had no correspondencie: the Philosophers say, that the rule must be homogenea, with that ruled; for which cause the Ciuilians affirme with all reason, Forum sortiri, & statutis ligari paria sunt. Pau. Cast. l. omnes populi, ff. de instit. & iur. Wherefore he which consents that the Senate hath lawfully determined the cause betweene the Monkes and the Doctor, he must needes also grant them power to decree that in generall, which hath beene ouer­ruled in iudgement giuen, and ought so to be in all others that shall occurre.

But if it be vnderstood to reprehend also the examinati­on, and end made by the Senate, Decius c. quae in Ecclesiarum, &c. Ecclesia San­ctae Mariae, de const [...]t. Alex. cons. 201. l. 2. in the case betweene the Monks and the Doctor, this may be; which manifestly de­clareth how requisit it was, not to haue beene so forward, but at first to haue framed a Monitory, and principally vpon this point, before seeing the processe framed in the sute, and controuersie aboue mentioned.

Considering it is not true that the Doctor was plaintife in that case, and the Monks defendants, as the Monitorie sup­poseth; it running thus; inter doctorem, &c. ex vna, & Mo­nachas, &c. ex altera partibus. of the one partie, and the Monkes of the other partie.

But Corsato de Corsati, in 1598, hauing bought of An­drea Monaldo eight fields which paied canonate to the Mo­nasterie of Pragia, the Doctour 1602. the 12. of Februarie, tendred the price, to make his draft by border or confine: and the second of March, the Monkes pretending to be preferred to him, as Patrons of the free-hold of those fields, they came before the Podesta of Padoua, Like our Maior. and commenced sute, pretending prelation; in which cause many actions were tried before the Magistrate; till according to the custome of this State, by the Doctors & Communaltie of Paduaes sup­plication, the hearing of the matter was referred ouer to the [Page 56] Senate. The Doctor drew not the Monasterie to a Laie iudgement; but the Ecclesiasticks themselues knew well, that the determining of this cause belonged vnto a Secular Iudge; for this cause they had recourse to the same: the which one example onely, if there had beene no other, gaue iurisdiction to the Podesta, and consequently to the Senate in that cause, as in expresse words it is declared; in l. prima, C. de iurisd. omn. iudic. But besides this firme and solide foun­dation, we may adde another very preualent and vniuersall, which is, that from time out of minde, much before 200. yeeres last past, when any plea hath beene of goods posses­sed by the Laietie, (giue them the name of emphyteoticall, censuall, feudatorie, lease for long time, or what other title soeuer) the Ecclesiasticall Iudge in this State hath neuer de­nounced iudgement therein; but alwaies and without con­tradiction, the hearing and iurisdiction thereof hath be­longed to the Secular. So that by this, wee doe not onely prooue, that the controuersies betweene the Monks and the Doctor was iuridically determined by the Senate; but fur­ther, that a power is proper to them, to make statutes, which may dispose and order of those goods aboue named, posses­sed by the Laietie, wherein the Church hath directly free­hold; for vnto them it hath and doth appertaine, to deter­mine those controuersies, which haue or doe arise about them; and aboue we haue made cleere demonstration, how it standeth with the same power to make statutes and de­nounce iudgements. There remaine registers in all the Chanceries of this citie, of iudgements giuen by a Secular Iudge since they haue beene subiect to this State; and not one can be produced which was tried in an Ecclesiasticall Court. And it cannot be tearmed an vsurpation, seeing the Clergie haue not beene drawne to these Courts, as defen­dēts but they haue voluntarily appeared as plaintifes: & that which ouerthroweth this claime more then any thing else, is; that in such controuersies betweene Church and Church, they themselues haue appeared in the Secular Court, to de­mand [Page 57] Iustice against another Church. Nay and out of doubt it may certainly be beleeued, that the beginning of this in­troduction hath beene very Canonicall, seeing the Clergie of that time were also very good men, and zealous in the Churches behoofes; and in like maner the Popes were most exact mainteiners of the Ecclesiasticall Iurisdiction: and so as well the one as the other, knew very well the title of that ground for which they came in sute before the Secular; nor none of them euer reprehended this course of iudgement, but rather securely we may affirme, that they themselues haue brought it in. And there is an expresse constitution of Iustinians, that custome alone giues as great iurisdiction as a law made.

But in that his Holinesse saith in his Monitorie, C. de eman. lib. l. vlt. that the Senats ordinance constituteth in bonis Ecclesiasticis emphyteo­ticis, it must necessarily be, that either his ministers haue had some other copie or writing, then the true originall, or else that transported with affection, they supposed they saw that in it, which cannot be found neither in words nor sense; because that emphyteoticis, is not there either formally or in equiualent words; and they can no waies excuse themselues by saying they thought that the sense had beene so, as they haue expressed it: that it is not lawfull to relate an other mans speech in other words, but especially in such a manner as to restraine that to one kinde, which was spoken general­lie. The law saith; that Churches may not appropriate vn­to themselues, goods possessed by the Laietie, their direct title and right notwithstanding reserued. It is not true, that there is distinction of directum, and vtile onely in Emfiteusi, but both these claimes concur in patrimoniall goods, both the which are treated of in a title of the second booke of Iu­stinians Codex, whose direct right may lie in the Church, tit. de sun. pa­trim. L. siquis fun­dos. L. fundi patri­moniales. L. hi quibus. if the Prince haue giuen them it: and although this maner of possessing was out of vse in Italy vnder the French Empe­rors, and their successors, and instead thereof, there hath come in fee-simple; yet doth there remaine in Churches [Page 58] but especially those cathedrall, some goods of this nature which were giuen before the Emperours of Constantinople were wholly excluded from the Empire of these adiacent re­gions; in lease perpetuall or perpetuities, there is directum and vtile: where notwithstanding (as also in the lands aboue mentioned) neither relation nor consolidation, nor extin­ction of line take any place, as Couaruuias, and Valasco, who are cited by many Doctors, doe effectually prooue; al­though some not very circumspect hold the contrarie.

A great part of the direct titles of Churches in these low Countries neere the sea, which sometimes were marishes and vallies, are of this kinde: for this soile being altogether vn­der water, and reaping no fruit from it, but reeds and flags, they were let out for euer, or at least for a wonderfull long time, at a verie easie rent, answerable to the profits that they yeelded, though now through the wonderfull charge of the Secular, both publike and priuate, in raising of the ground, drenching of the marishes, and draning of the water; they haue beene reduced to the State wherein they are: where­upon the Church hath no reason in this, neither by written euidence, equitie of pretending prelation, deuolution, or vnder any other claime to appropriate them to themselues; and of these the law of the Senate, in a great part entreateth, as also it constituteth vpon other kinde of goods, as shall be expressed.

For it must needs be, that a pension was paied to the Church, either by the claime of a reseruatiue cense or impo­sition, or that the Church in ancient times vpon sutes made, haue couenanted this reseruation, or that hauing beene re­serued by other Lords the sellers, it was afterwards giuen to the Church by them: In which case, this reserued cense or taxe, out of doubt belongeth to the Church in perpetuum: but ouer the possession stable, there remaines in no sort any title vnto them, by vertue of which they may pretend con­solidation, prelation, couenant, or other such like actions.

Fee-simple is also of this nature, that in it direct title is [Page 59] distinguished from profits; and I wonder, when they would needs adde to the law of the Senate, and declare it in another sense then the truth therof imported, with that word Emphy­teoticis, why to change and adulterate it the more, they said not, Feudalibus: but peraduenture they would not proceed so farre, because they could not hope it would neuer be spi­ed, it being a vulgar word, and well vnderstood of all men.

The word Emphyteoticis, is somewhat more vnknowne, and therefore was thought the fitter to be secretly put in; and therefore I cannot forbeare to replie, that in the Senats law the word Emphyteotici, is not vsed, but it generally speakes of all contracts, and manner of possession, wherein the two titles of directum and vtile stand diuided; neither is it lawfull for any body to restraine or expresse it, contrary to the true sense thereof, to the end, the better to bring in the conclusi­on following, set downe in the Monitorie, which otherwise could not haue beene deduced: Cùm praemissa in aliquibus ec­clesiarum iura, etiam ex contractibus initis ipsis ecclesijs compe­tentia, auserant.

It is no new matter, that the Spiritualtie, to enter vp­on goods possessed of Seculars, haue assayed to bring in this name of Enfiteusi into their titles, by which they receiue a canon or pension: but two hundred yeeres agoe, diuers cities of Italy haue stood out against them for this cause; and they themselues haue otherwhiles beene constrained to giue ouer their pretences and titles, and to be contented with their bare canon comming in.

In the same citie of Padoua, Extant au­thentica capi­tula transact. about an hundred and fiftie yeres since, great controuersies grew betwixt that Commu­nalty & the Monks of S. Iustina, and Pragia, vpon this point, the which they ended by comprimise; where amongst other things it was set downe, that in all their goods, neither es­cheat, prelation, nor consolidation for di [...]ect line extinct, should take any place, as the citie then constantly auerred, that from time out of minde, it had beene the vse and cu­stome of the place.

Paula Cas. l. Consil. 244.In Vrbine also before that time, there fell out a great con­trouersie betwixt the Clergie and the people, the which was likewise ended by comprimise, with an expresse declaration that consolidation vpon line extinct, should neuer take place. A little before that also, there grew very dangerous tumults in Ferrara, about this very point; for pacification of which, Pope Boniface the 9. rather as a Soueraigne Prince, then as a Pope, not out of fauour, but by iustice was infor­ced, in fees, Emfiteusi, and other such like contracts, within the territories of Ferrara, to take away escheate, prelation, with consolidation, per lineam finitam, and to set downe a new forme, correspondent to equitie and iustice, which might reduce them more to the nature of Censes, then of a­ny other tenor; and the Doctors also perceiuing the nota­ble dammage the Laietie receiued by deuolution, or conso­lidation by line extinct, out of a cōmon opinion, they abso­lutely remooued it; affirming that in such a case, the neerest kinsman collaterall might claime by iustice to be inuested therein, Vide Clar. & Valasc. Ruin. cons. 12. vol. 1. Decius consil. 131. Bero cons. 98. l. 1. Abbas c. bonae, de postul. prae­lat. & consil. 113. Curt. Sen. cap. 47. Riminal. cap. 44. and being denied, he might appeale; and many grow to this specification, that the Church sought to en­croch vpon the stable possession it selfe; and also others an­nexe heereunto, that they are not bound to grant the inue­stiture, but further that they cannot improue nor enhance the Canon.

It is no wonder if by a law or solemne comprimise in the places aboue named, caducitie for Canon not paied, prela­tion in case of sale, and consolidation for line extinct, are taken away, considering that none of these are necessarie, or essentiall in a contract. But whatsoeuer may be done by a law, may be performed by a deed, as also custome may bring it in; For which cause a long and prescript custome time out of minde, this State was of force an hundred and fiftie yeeres since, to take away from a little emphyteoticall substance, (prouided if there then were any) caducitie, pre­lation, and consolidation; and furthet to introduce, that more then the paiment of a pension, they should be held for [Page 61] patrimoniall and leasable. Wee may see the 72. Cons. of Panormitano, where he discourseth at large, that custome was also of that force in Ecclesiasticall emphyteusi to pro­cure in the citie of Vrbine, that the condition of caducitie was vtterly remooued. The which notwithstanding were more profitable for the Church; for by this the Church should gaine the improuements without paying them, the which by prelation, consolidation, or line extinct, they could not appropriate to themselues, without paying them at a iust rate; whereupon by an argument a simili, and also a maiore, so much the rather may custome take away prelati­on, and consolidation. We may adde heereunto, that it is not peculiar to this State, that some goods emphyteoticall should be made leasable; but also in France all Emfiteusi are made such, as Ioan. Rub. Auth. Ingressi, de Sacrosanctis Ecclesijs testifieth. All which things doe euidently shew the equitie and necessitie of such a law. The which, though the Vene­tian Senate did not constitute at that time, in forme of a writ­ten law, published through their whole State, in generall tearmes; yet notwithstanding they haue by vse, custome, and writing also, in causes occurrent, made, obserued, and executed the same, from that time hitherto.

There are many Decrees of the Princes of this Common-wealth, with their Colledge, which from time to time in controuersies occurring betwixt the Church and the Secu­lars, or betweene Church and Church, haue beene resolued and determined, not to admit of caducitie, prelation, or consolidation of profits with the free-hold; and sometimes they haue put into their euidences generall clauses, which might comprehend all these cases, as in Duke Vendra­minos daies, in 1476. in a rescript made to the Podesta of Monselice, vpon such a particular controuersie, these words were added; nunquam pati volumus (etiam in bonis Ecclesiasti­cis, quenquam, qui diu tenuerit agrum aliquem iure liuelli, quem sumptibus, & laboribus suis meliorauerit, sic de facto expoliari, sed tantùm quòd soluat liuellos non solutos: and in Duke Moroes [Page 62] time, in other rescript to the Rectors of Brescia the yeere 1466, hauing excluded the Abbat of Leno from withhold­ing any of his liuellarie goods solde vnto others, there is ad­ded; Et de hac nostra intentione, date dicto Abbati notitiam, & declarate, ne contra eam dictos Christopherum, & Cornelium inquietet, sed acquiescat huic voluntati nostrae, quia hoc idem in alijs terris & locis nostris seruari volumus, & facimus in simi­libus.

C. de leg. l. si Imperialis. Afflict. d. 313. Menoch. vide cons. 676. nu. 2. 487. nu. 3. 973. n. 20.From which we may cleerely collect, that this is no new law, but from ancient times by custome established, and also confirmed, not only by the particular iudgemets of Magi­strates, but by the Prince himselfe. Of which the law thus speaketh: Si causam Princeps inter partes cognouerit, & senten­tiam dixerit, est lex in omnibus similibus: and according to the Ciuilians, they retaine the vigor of a law, though they were but decisiue only in a particular case; as indeed all the Ca­non lawes are but in a maner the decisions of particular ca­ses: but so much the rather, when they are further ioyned with a signification of the Princes will in such like cases, with an explanation thereof in generall tearmes, as in the aboue specified. And these things were performed by the Com­mon-wealth; not only the Clergie, who were repulsed in their demands, but the Nuncioes Apostolicall also: and so consequently, the Popes themselues seeing and vnderstand­ing as much, yet neuer repealing them, and therefore se­cretly approouing them for iust, and necessarie to be put in execution. So that what the Senate did deliberate 1602, is a declaration and expression in writing of an old law, enter­teined by custome, and mentioned in direct writings to par­ticular Magistrates, euen as also in the selfe same law it is ma­nifestly declared in these words: The seruice of our affaires, for the quiet and comfort of our subiects, requireth that this sute be determined in such a maner, as not onely in the pre­sent occasion of Zabarella, but that for euer, vpon any other of the like nature, it shall not be determined differently from the good custome and iudgements often times denounced, [Page 63] conformable to the same. I will not omit to adde, that if there had beene the least scruple of offence in that law, Pope Clement the Eight, during whose Papacie it was published, being a very zealous Pope, and one that in this citie had ve­rie vigilant ministers, would neuer haue dissembled it.

And if the tenor of this ordinance hath beene read, it yet seemes very requisite, that hearing custome, and iudge­ments so often to be named therein, they should first haue seene and vnderstood, what custome and iudgements those were. What is he of so meane an intellect, which sees not how this proceeding hath beene without vnderstanding the cause, and that many particularities haue beene purposely kept backe by them, which should haue beene related to his Holinesse, for verification of this act; they conceiuing well that all these things were necessarie to be vnderstood, before the comming to treat an execution? But it seemes there was such a speciall desire that these thundrings should come forth, as for feare of meeting with somewhat which might di­uert it, they shunned the verie sight of any thing that might remooue his Holinesse minde from such a deliberation.

If the intended breuitie of this present discourse would permit, it should euidently be made knowne, how beyond all reason, it is said in the Monitorie, hauing reference to this law, as it appeares: Cum (que) praemissa in aliquibus Ecclesia­rum iura, etiam ex contractibus initis ipsis Ecclesijs competentia auferant. As also withall, it would be cleere, that by that law there is no ius quaesitum taken from the Church, nay, and which is more, the same continuing in vigor and force, there remaines still to the Church a most easie and readie way to retaine omnia iura quaesita sibi competentia. It was neuer the custome of this Common-wealth, to take away ius quasi­tum, from any body whosoeuer, much lesse from the Church; but he that will iudge of others lawes without er­ring, it is necessarie that he first vnderstand and haue full in­formation of them, & not to proceed to their condemnati­on before he haue so much as lookt into their foundations. [Page 64] I haue spoken more of this matter, then was conuenient for this discourse, yet is it not the least part, in respect of that which remaines behinde.

And if occasion be offered, to make knowne the founda­tion of this law, euerie one shall perceiue, how it is grounded vpon iustice and equitie, and how lawfull the authoritie of the Senate was to constitute it.

Now let vs returne againe to deliuer that which yet hath beene vnspoken of, concerning the matters aboue discour­sed of. If the Pope preuented of his more mature delibera­tion, would not admit of reasons so cleere and euident as those before declared, and so to haue iustified the cause of the Common-wealth: yet at least perceiuing that all Europe had lawes like vnto these, which he so sharpely reprehended, and that such a number of approoued Doctors hold a con­trarie opinion to himselfe, hee might haue held the case doubtfull, and haue proceeded with circumspection; cal­ling to minde that excommunication, is a grieuous penalty, and an odious matter; and as the Canonists affirme, Sirictis­simè interpretanda. Neither is it vnderstood that any one in­curs the same, when the words of the Canon are ambiguous or generall, the which may not be wrung to an other case, by way of similitude, and much lesse with an argument a mi­nori: For if one giue a Priest a boxe on the eare, he is excom­municate; but if he shoot an harquebusse at him, and that in the Church, and hit him not, he is not excommunicated for this, though the second offence is an hundred times greater then the first. Let it be granted, that whosoeuer makes sta­tutes against Ecclesiasticall libertie, ipso facto is excommu­nicated. This point must also be cleared, whether the Vene­cian statutes be against the libertie of the Church; and it hath beene prooued with most effectuall reasons, that they are not; the which also though they were, it appeareth by act, and not by discourse, that the like lawes haue beene re­ceiued all Europe ouer: and we see in Print, how many wri­ters doe iustifie them. Then this is out of doubt at least, that [Page 65] they are not absolutely against the Popes authoritie, as it is supposed. Vnto which let me annex this; that being not yet decided, what Ecclesiasticall libertie is, as hath beene said, and the Doctors not agreeing thereupon, much lesse can they be out of doubt, that these lawes and acts are against it. But for al this, in a matter, of which according to some mens opinions, there is controuersie, and that in so many points remaines doubtful, out comes me headlong an Interdict or excōmunication, without foreseeing, or maturely conside­ring the inconueniences, which saith the Chap. De sentent. excom. in 6. Alma Ma­ter, ensue of such censures; that is, the people lose their deuotion, heresies are brooded, infinite dangers grow to mens soules, and without the peoples fault due seruice is taken away from the Church. Surely Christian pietie requi­red, that the woorthinesse of this cause should first with all diligence haue beene examined, neither should lesse then a good opinion at least haue beene borne towards a Com­mon-wealth so pious and deuout. Euery Prelate is bound first, in himselfe to conceiue the woorthinesse of the cause, and then with Christian loue to acquaint others with the same; and as S. Paul teacheth, in spiritu lenitatis; Gal. 6. the which as it would haue produced some excellent effect, being ob­serued; so being neglected, it hath caused great euill, which now may alreadie be seene, and further greater dangers, which still hang ouer our heads.

The Pope in his Monitorie of the 17 of Aprill saith; that the Duke and Senate of Venice, haue many yeeres past made sundry statutes, through which they did incurre cen­sure; but amongst others, he specially names three, vpon which he discendeth to fulmination, except they be reuo­ked within foure and twentie daies. Euery good Christian may heere desire to vnderstand, that seeing a great number of different and sundry statutes haue beene made by a Com­mon-wealth, to the soules preiudice, and that for euery one of these, she hath incurred Ecclesiasticall censure, being fur­ther bound, to cashiere and annihilate them all: why is the [Page 66] Senate told but onely of three? We neither can nor must beleeue, that the other would be omitted for the damnati­on of soules, and therefore at this present why are they not all treated of? When any one meetes his owne debtor, hee may aske him a part of his debt, and as he is principall, hee may remit the rest, or the whole: but an agent or factor, can not doe this, except by a commission from the principall. If diuers and sundry statutes made some yeeres since, offend God, the Common-wealth is bound to reuoke them all, and in but reuoking of three, they should not sufficiently discharge their dutie. Iac. 2. S. Iames saith; Quicun (que) totam legem seruauerit, offendat autem in vno, factus est omnium reus.

Our Sauiour commanded the vse of excommunication for sinnes, which procure the soules preiudice, when he saith; Si peccauerit in te frater tuus: Matth. 17. and S. Paul expresseth what these were, saying; Si is qui frater nominatur est fornicator, aut auarus, aut idolis seruiens, aut maledicus, aut ebriosiu, aut ra­pax, cum huiusmodi nec cibum sumere. Wherefore at this present we may alledge what the Sonne of God sometimes said; Matth 23. Vae vobis, qui decimatis mentam, & anetum, & cimmum, & reliquistis quae grauiora sunt, legis iudicium, & misericordi­am, & fidem: haec oportuit facere, & illa non omittere. Out of which we may answer plentifully to that which is contained in the Monitorie, that the lawes and decrees of the Com­mon-wealth were, in perniciem animarum. And moreouer, if it had inferred, that the actions of the Common-wealth were in in scandalum plurimorum; they must take heed lest they conclude quite contrarie to that they would. Out of question, we ought diligently to extirpate all things scanda­lous, but especially if they be of badde edification vnto ma­ny; but we neuer heard, that any hath beene scandalized by seeing offenders chastized and punished, that disturbe the publike peace, or to see auarice and luxurie bridled. It ra­ther breedeth scandall to see a wicked fellow walke through the citie; when his companions in the same offence were executed: and so consequently to see one sued by the priui­ledge [Page 67] of the Church, whose punishment aboue all other, the Church should rather haue procured. And it bootes not to extend farre, in manifesting what things are scandalous, be­cause euery one is priuie to himselfe, wherein he giueth or receiueth scandall; and those also that in some sort defend things of bad instruction, they doe it not without blu­shing, and feeling in their owne consciences that they op­pugne the trueth.

It is true that this Monitorie was made after the example of ten Popes more, which therein are named, and his Holi­nesse is to be commended in imitating of them; but so a­gaine, an hundred others his most Holie predecessors are woorthie of no lesse commendations, which neuer gaue the least signe, that euer it came into their thought, that they might disanull the lawes of Princes, made for publike be­nefit: but rather they haue published and executed the same also; and when they met with any scruple in their pro­ceedings and iustice, they haue with great dexteritie and charitie sought to make knowne vnto their Princes, what Gods will heerein hath beene. In this maner S. Damase published & executed Valentinians law: and S. Gregory, one made by Mauritius, wherin a souldier was prohibited to be­come a Monke. Further the denouncing of an excommuni­cate sentence against an whole Senate, which is not a particu­lar person, is far from the doctrine of the ancient & best di­uines. Lib. 3. cont. Ep. Permen. 23. q. 4. c. non potest. S. August. holds an excomunication against an whole multitude, though it were for some notorious and manifest sinne, too sacrilegious, pernicious, impious, and insolent (for these are his formall words:) and he aduiseth good Pastors in those cases to haue recourse vnto God, with sighes and prayers: a place intreated of by that Saint at large; Two scurrile writers. q 22. a. 5. in add. & in 4. d. 18. q. 2. a. 3. quol. 10. 15 and with such a spirit, as if it were read instead of Barbaccia, or Zen­zelino, it would produce a verie charitable spirit in euerie Christian minde; which the reading of the others will neuer doe. S. Thomas putteth a question, whether any Genera­ralitie may be excommunicated; and he answers himselfe, [Page 68] No: and produceth reasons for the same, concluding that the Church appointed with great prouidence, that no Commu­nitie might be excommunicated: & all other Diuines with accord determine the same. As also Pope Innocent the Fourth in the Chap. De sentent. ex­com. in 6. Rom. saith thus; In vniuersitatem, vel Collegium proferri sententiam excommunicationis penitus prohi­bere; where the Glose debates whether a sentence of excom­munication denounced against a Communitie would be va­lidious or no, & he alledgeth foure famous Doctors which affirme that it would not, and he voucheth one of the con­trarie part: in the end he comes to this point; that it should not indeed be denounced; but if the denunciation were past, he holds it securest to take it for validious. In this argument they all agree, that such an excommunication ought not to be thundred out; many say also, that being denounced, it is nothing: and some few after fulmination, hold it preua­lent. It belongs to a religious and godly conscience, to fol­low the opinion of the most famous, the best grounded, and that which is established by Pontificall constitution, or that fauoureth pietie most; and not that generally condemned by the Doctors, seeing those few also which repute it true, giue no aduice to follow the same. And that which we read in all the books of the Canonists, cannot be opposed there­to, Papa non potest errare; the which proposition was soundly vnderstood by him that first deliuered it, and was limited onely to matters of faith, in decreeing and determining; not in supposing or thinking; and being to speake, the Pope was to vse the due meanes of diuine inuocation and assistance. At this present, adulation, remoouing the true limits, carries it away absolutely for true, although the effects were of­tentimes quite contrarie. S. Peter himselfe may serue for an example; Matt. 16. who after that Christ had said vnto him, tibi da­bo claues Regni Coelorum, immediately he fell a reprehen­ding our Sauiour himselfe, because he would be crucified; wherefore our Lord said vnto him; Vade post me Sathanas, scandalum es mihi, quia non sapis quae Dei sunt, sed quae homi­num. [Page 69] His deniall also is so well knowen to euery one, that it imports not to recite it. And S. Paul in his Epistle to the Galathians, sayth; Cum venisset Cephas Antiochiam, Galat. 2. Gen. 2. in faciem ei restiti, quia reprehensibilis erat. And S. Peters example is not alone by it selfe; for if Cam had not beene reprehended for discouering his father Noahs nakednesse, three and twen­tie Popes might be produced subiect not only to some im­perfection in their priuate customes, but in their gouern­ment and doctrine also; and if any man please to reade the liues of the Popes after the yeere 890, for an hundred & thir­tie yeeres following, without looking after some others dis­persed; he will discerne that to be most true, Heb. 5. which S. Paul sayth; Omnis Pontifex ex hominibus assumptus, pro hominibus constituitur in his, quae sunt ad Deum, vt offerat dona, & sacrifi­cia pro peccatis, qui condolere possit ijs, qui ignorant, & errant, quoniam & ipse circundatus est infirmitate. So that S. Boniface the Martyr sayd not without iust cause; Si Papa suae & frater­nae salutis negligens deprehenditur, inutilis, & remissus in operi­bus suis, & insuper a bono taciturnus, quod magis officit sibi, & omnibus, nihilominus innumerabiles populos cateruatim secum ducit, primo mancipio gehennae cum ipso plagis multis in aeternum vapulaturus. Huius culpas istic redarguere praesumit mortalium nullus, quia cunctos ipse iudicaturus à nemine est iudicandus; nisi deprehendatur à fide deuius.

We need not take it for such a great woonder, that one Pope with his decrees and censures hath offended or iniured another, nor repute it such a sinne to say, that he ought also to amend his owne errors committed: for not only religious and godly Popes, but those also that were lead most of all by humane meanes and policie, haue confessed that they might erre, and offered themselues to reclamation. Innocent the Fourth entreating of a controuersie betwixt him and the Emperour, Fredericke the Second, vseth these words; Si Ec­clesia cùm in aliquo contra debitum laeserat, quod non credebant, parata erat corrigere, ac in statum debitum reformare, et si diceret ipse quod in nullo, contra iustitiam, laeserat Ecclesiam, vel quod [Page 70] nos eum contra iustitiam laesissemus, parati eramus vocare Reges, Praelatos, & Principes tam Ecclesiasticos quàm seculares ad ali­quem tutum locum, vbi per se, vel per solemnes nuncios conueni­rent, eratque parata Ecclesia de consilio concilij sibi satisfacere, si eum laesisset in aliquo, ac reuocare sententiam, si quam contra ip­sum iniustè tulisset, &c.

A sentence therefore of Excommunication hauing beene thundred out against the Duke and Senate, and all their do­minions interdicted, because they will not suffer the libertie of the Common-wealth to be defrauded; because they giue not consent for the cooping vp of the foundations whereon it is built; because they doe not depriue her of the power granted by God, in the administration of the Common-wealth, so necessarie for to mainteine the tranquillitie and peace of her dominions; because they defend the liues, ho­nour, and goods of those people committed to their go­uernment; and to conclude, because they haue euer, and now do that, which they are commanded by his diuine Ma­iestie. And though this Excommunication was denounced without vnderstanding the cause, without citation or obser­uation of those essentiall tearmes proper to iudgement, and ordeined by God in the law of Nature, with an affection, farre different from that which his diuine Maiesty comman­deth, without due aduice, and flat against the doctrine of the holy Fathers, sacred Diuines, and the Pontificiall con­stitutions themselues; yet remaines it to be considered vp­on: for all the iniustice thereof is so cleere, and the nullitie perspicuous and plaine, what the princes dutie in this case is, and how he ought to beare himselfe herein before God and his holy Church.

At the first sight, somebody may aduise peraduenture, that it were good to follow herein the counsell of S. Grego­rie: Sententia Pastoris, siue iusta, siue iniusta timenda: and so to commend his cause vnto God, with assurance, that patient­ly to support vniust censures, will turne to his great merit before the Maiestie of God. An excellent course and coun­sell [Page 71] for an innocent, which could not shew the equitie of his owne cause; but for a Prince that hath so cleere and manifest reason on his side, a more pernicious way cannot be taken either for himselfe, his State, or the seruice of God, which must be respected aboue all other things: For a Prince is more bound then a priuate man, to feare God, to be zea­lous of his holy faith, to reuerence Prelats, that he discharge Christ his place; but so he is more bound to auoid hypocri­sie and superstition, to preserue his dignitie, to maintaine his State in the exercise of Religion; to take heed lest that do not happen to his people which sometimes fell out to the Iewes, through Moses long absence, who thinking that in him they were depriued of the true God, they made them one of gold: a thing which if it were well considered, the world would not be at that passe which now it is. That saying is not so generally true; sententia Pastoris, siue iusta, 11. q. 1. c. sen­tentia. siue iniusta ti­menda, as some Doctors interpret it, who haue introduced and would maintaine in the Church of God, a power which in name should bee called Ecclesiasticall, but in deed is Temporall.

There is another Canon made by Pope Gelasius, he that went before Gregory, and no lesse famous in doctrine, and sanctitie then himselfe, where he saith; 11. q. 1. c. cui illata. Si iniusta est senten­tia, tanto curare eam non debet, quanto apud Deum, & eius ec­clesiam, neminem grauare debet iniqua sententia. Ita ergo & ea se non absolui desideret, qua si nullatenus perspicit obligatum. These two holy Fathers are not so opposite as the words may seeme to import: But Theologicall doctrine will verie well reconcile this apparent contradiction. There are some vniust censures, because they are denounced with a peruerse minde and intention; although it were vpon a iust and law­full cause; there is no doubt but all men will yeeld that these are to be feared, and that before God they oblige vs, as if they were iust: although the Magistrate in his wicked inten­tion offendeth his diuine Maiestie; and of this it may be vn­derstood, that, sententia Pastoris siue iusta, siue iniusta timenda [Page 72] est. Some are in trueth grounded vpon an vniust cause, though in apparence iust, by reason that in things hu­mane, the truth is oftentimes so concealed, as it is not possi­ble to discouer it; so that an innocent sometimes may be cōdemned without any fault in the Iudge. This kind of sen­tence obligeth vs not towards God, neither ought it to be feared, before his diuine Maiestie, or in conscience, although he condemned be bound to make a shew of feare, not to scandalize his neighbour, who esteemeth that sentence good, and to liue towards God, as his innocencie requireth, before the world, that thinks him culpable (if he cānot mani­fest the truth) to liue in patience, & so to commend his cause vnto God: But if the sentence be vniust, denounced with­out a lawfull cause, neither in trueth, nor in apparence, wee must not onely not feare it, but with all our power we are bound to oppose our selues thereunto. This doctrine is established in eleuen Canons in the Decretorie, Cáp. qui iustus, c. cui illata. cap. secundum Catholicam, c. coepisti. cap. remerariè, cap. quod ob­esse. cap. quò, c. illud planè. c. non debet, 11. q. 3. cap. manet 24. q. 1. c. si quis, 24. q. 3. and it is so receiued amongst all Diuines and Canonists, that no one of them differs from another; as also they agree in this point, that none can be excommunicate, except it be for mortall sinne, the which must be prosecuted also, after he hath been first admonished by the Church. Hee that will but read all the foresaid Canons, may be fully instructed, that he need no whit to doubt, but that vniust censures doe no waies ob­lige or offend, and that they are not to be esteemed. And so much the rather he may vnderstand this trueth, if he reade but the authors, in the fountaines themselues, out of whom these Canons are taken; for the words both before and after, will make the matter more manifest. The sentence vniust in trueth, but yet iust in appearance, and which to auoid scan­dall ought to be feared, cannot grow but from an errour in the fact; for the case being deliuered in sincere trueth, the Iudge which erreth in discerning of equitie, though it were through ignorance, is alwaies in fault: therefore whatsoeuer sentence is vniust through manifest errour in iure, it is no­thing, nor of any validitie, neither doth it binde vs before [Page 73] God, or before the world. In that, for which the Pope thun­dreth out this present excommunication, there is no errour at all in the fact, the trueth is most cleere, the lawes of the Senate are in writing; the delinquents accused and impriso­ned; there can be no concealed innocencie, which may ap­peere to be a fault. The question is, in iure, we must see whe­ther in the lawes made, or in the imprisonments decreed, there is any errour committed: for if neither the Prince nor Senate haue offended, but haue contrariwise obeyed the commandements of God, in procuring the preseruation of their subiects honours, liues, & goods, as at large in all these points hath beene declared; we can no waies doubt of the iu­stice of the Senats cause, and consequently of the nullitie of the sentence Pontificall; but especially and by which this is made manifest, there needs not such great dexteritie of con­ceit to apprehend them, but with very slender cōsideration, they appeere manifestly to all men: wherefore considering the innocencie of the same Senate before God, & euidencie also thereof before the world, there remaineth no scruple, wherein iust scandall may be giuen. In like maner there is no reason why they should in any sort feare this excommuni­cation, neither in conscience, nor in any externall triall, ex­cept as any one may feare a manifest violence offred to a si­nister end; considering it is a manifest violence to vse the po­wer of excommunication, granted by Christ, contrarie to his owne institutions: and towards him which hath power, and vniustly vseth the same, the remedie is to haue recourse vnto a superior, if he may; but if there be no superior, to whom to haue recourse, God hath allowed no other remedie to a Prince thus offended, but to make resistance with his owne force, opposing himselfe to force; because it comes frō God, & the ciuil being of euery Common-wealth or kingdome is to the end of his glorie; and therefore a Prince cannot per­mit without a sin and offence, that his owne libertie should be infringed, which is the ciuill being of euerie principallity, and there is no doubt but negligence in defending of it, is a [Page 74] greeuous offence vnto God, and most hainous, if he volun­tarily suffer it to be vsurped ouer his head. To obey the commandement of God therefore, wee must oppose our selues against him whosoeuer, that would take away the power which God hath giuen to make lawes, & with iustice to defend the foresaid offended in their liues, honours, and goods. And as the innocent by an error in facto, vniustly ex­communicated, to auoid scandall, is bound patiently to en­dure: so when the error is in iure, and the manifest iniustice thereof is apparent, to auoid scandall likewise, the Prince is bound to resist, and to oppose himselfe against this iniurie; because there is no doubt, but when this shall be knowne to other kingdoms, where the like vnto the Venetian lawes are obserued, and where malefactors are iudged after a con­formable maner, that the Cōmon-wealth for feare of vniust censures, and those inualidious, hath yeelded vnto violence, and omitted to exercise and execute his naturall power, they would be much and exceeding scandalized heereat, as also the subiects that should discouer such a vaine feare, they would become very peruerse. And therefore for this point also, it was both equall and necessarie for the Prince to make due resistance.

So that the Popes fulmination being vniust and nothing, it followes consequently, that for necessarie defence, the ob­stacle of the Common-wealth, in the publication and execu­tion thereof, hath beene most iust and lawfull. And the Common-wealths subiects, but especially those of the Cler­gie, ought to pacifie their minds and consciences, attending the seruice of God, vnder the protection of the Prince; con­stantly beleeuing, that the holy Ghost was promised and gi­uen to all the faithfull, among whom Christ himselfe is pre­sent, when they are congregated in his name; and that none can iustly be excluded out of the holy Catholicke Church, except by his owne worthy demerits he be first excluded from the fauour of God. And that the obedience which God commands vs to performe to our Ecclesiasticall supe­riors, [Page 75] is not a foolish or ridiculous subiection; nor the power of Prelates is not an arbitratorie iudgement; but both the one and other must be ruled by the Law of God, who in Deuteronomie ordeined not an absolute obedience to the Priest, but a prescribed obseruance, Deut. 17. according to the law di­uine. Facies quaecun (que) dixerint qui praesunt loco, quem elegerit Dominus, & docuerint te iuxta legem eius. God only is an in­fallible rule, we must onely professe obedience vnto him, without all exception. He that generally professeth this to­wards others, without the commandements of God, sin­neth; and whosoeuer supposeth any humane will to be infal­lible, committeth great blasphemie, in ascribing to the crea­ture a propertie onely diuine. Absolute obedience is onely rendred vnto God, an obseruance limited within the bounds of lawes diuine. And this they vsed in the ancient Church; we haue an example hereof in the Acts of the Apostles, writ­ten by S. Luke: That the faithfull thought the contrarie of S. Peter, and withstood him about the vocation of the Gen­tiles; and yet were they not thundred against with hideous excommunications, or threatned by him, and forced to hold their peace; but by the reason and authoritie of diuine reue­lations, and the words of our Sauiour, 1. Cor. 13. they were taught and perswaded. Christian charitie, sayth S. Paul, Patiens est, be­nigna est, non inflatur, non est ambitiosa; It threatens not, it de­stroyes not, it entreateth all men like brothers. Considering that Prelates must not domineere nor command with em­pire, 1. Pet. 5. but with examples and instructions of pietie and cha­ritie: lets heare S. Peter a little; Pascite qui in vobis est gre­gem Dei, prouidentes non coacte sed spontaneè secundum Deum, 2. Cor. 1. ne (que) turpis lucri gratia, sed voluntariè, ne (que) vt dominantes in cleris, sed formafacti gregis ex animo: and S. Paul, Non quia dominamur fidei vestrae, sed adiutores sumus gaudij vestri: And a Prelats charitie should be as readie to teach, as to be taught of others: for when S. Peter erred in Antioch, Gal. 2. S. Paul forbare not to reprehend him grieuously in the presence of all men: and let no man heere replie, who is like to S. Paul, [Page 76] that may be so bold? as though S. Paul by reason of his excellencie, might be the bolder to oppose himselfe against one, whom it was not lawfull to resist; nay, but we may iust­ly, and constantly affirme quite contrary, who is like Paul, that may be compared vnto him in humilitie and acknow­ledgement of himselfe, and of due reuerence to the high Priest? Questionlesse we may vndoubtedly beleeue, that as S. Paul in all the vertues farre exceeded, whatsoeuer we are able to performe, so in due reuerence to the head of the Church, Rom. 15. he obserued that, which the least of vs is bound to performe. The holy Scripture saith, Quaecunque scripta sunt, ad nostram doctrinam scripta sunt. The holy Ghost would ne­uer haue written this Historie but for our example, to the end we might imitate it; and we see, that all the Doctors in discussing how any one may oppose himselfe to the Pope, when he commiteth error, and gouernes vnwoorthily, they haue recourse to this example.

Let no man therefore be astonished, depending onely on the authoritie of a Prelate; Mat. 16. let him remember, That not one but two keyes were giuen to Peter, and if they be not both vsed together, the effect of loosing and binding doth not ensue; the one being of power, and the other of know­ledge and discretion. Christ gaue not a power to be vsed, without due knowledge and circumspection, but with great and exquisite iudgement; the which wanting, power onely takes no effect. The Canonists say, that the power of binding and loosing is intended by a key, not erring; and S. Leo the Pope, 24. q. 1. c. Manet. expresly affirmeth it in a Canon, speaking of this priuiledge giuen by S. Peter: Manet ergo Petri priuilegium vbicun (que) ex ipsius fertur aequitate iudi­cium, nec nimia est, vel seueritas, vel remissio, vbi nihil erit ligatum, vel solutum, ni­si quod Beatus Petrus solue­rit, aut ligauerit.