1. THAT the BISHOPS and principall Clergy were al­wayes of great authority in our Common-wealth, espe­cially for making of lawes, and constitutions of all kinds, is manifest, by all the lawes themselves of the Saxon Kings for the first 500. yeares before the Conquest: wherein they first testify that the lawes were made by the consent, suffrage, and approbation of their Bishops, whom they doe mention. So in the begin­ning of the lawes of King Ina: — Ego Ine Dei Lambard. p. 1. Concil. pag. 186. gratiâ West. Saxonum Rex, exbortatione & doctrinâ [Page 2] Cenredes patris mei, & Heddes Episcopi mei, & Er­chenwoldes Episcopi mei, & omnium Aldermanno­rum meorum, & Seniorum, — Constitui — so in Lambard. p. 57. Concil. p. 402. the beginning of the lawes of King AEthelstan, Ego Adelstanus Rex consilio Wlfelmi Archiepiscopi mei, et aliorum Episcoporum meorum, mando praepositis meisomnibus — Likewise in the lawes of King Ed­mund.

Edmundus Rex congregavit magnam synodum, Dei ordinis & seculi, apud London civitatem in san­cto Concil. pag. 423. paschae solenni, cui interfuit Odo, & Wulstanus Archiepiscopi, & alij plures Episcopi.

The same appeares, by the subscriptions to the lawes, by the Bishops and principall Clergy of their severall times, which is so frequently to be observed in the first Tome of our English Councells, that I will forbeare particulars.

II. Likewise for their dignity, order and condi­tion, the Clergy were reckoned, and accounted equall with the best, as appeares by the lawes of divers Kings, and first, of the first christian King Ethelbert, who, in his lawes, doth provide in the first place for their rights and priviledges; and what satisfaction shall be made for any wrong done to the Church, or Bishops, or Clergy.

Quicun (que) res Dei vel Ecclesiae abstulerit duodecimâ Concil. pag. 127. Bed. lib. 2 cap. 5. componat solutione.

Episcopires undecimâ solutione.

Sacerdotis res, nonâ solutione.

Diaconi res, sextâ solutione.

[Page 3] Clerici res, trinâ solutione.

Pax Ecclesiae violata duplici emendetur solutione.

Volens scilicet tuitionem eis, quos & quorum doctri­nam susceperatpraestare. saith Bede.

These being the first lawes of our first Christian King, they ought to be reverenced for their antiquity, piety, and Christian Iustice in rendring to every man his owne due, though now some men talke, not only of taking away superfluities, but of cutting up both root and branches. O tempora! O Mores!

And afterwards, about the time of King Withred, there were lawes made.

Quomododamna, & injuriae, sacris ordinibus illa.. Concil. pag. 206. ta, sunt compensanda.

as often elsewhere in the Councells, many lawes doe ordaine, what satisfaction shall bee given to the Church and Bishops, forseverall offences commit­ted; LL. Ed. Con­fess. cap. 31. Decanus Epi­scopi reliquas decem partes habeat. for then they had a great part in all fines, and mulcts, together with the King.

III. Further, for point of honour, and dignity, it appeares by the lawes of King AEthelstan, that every Arch-Bishop was equall to a Duke of a Province: Every Bishop to an Earle, and so esteemed in their valuations. Vid. LL. AEthelst. Regis apud Lambar­dum. pag. 71. & Concil. Britan. pag. 405. cap. 13. de weris seu wergildis. 1. capitum aestimationibus.

The title of Baron was not then knowne or used among the Saxons, but they called the Nobility Thanes. Vid. LL. Inae. pag. 187. §. 9. and the Bi­shop was equall (or rather superiour) tothe Thanus [Page 4] Major. And the Priest to the Thanus Minor. The Bishop and Earle are valued at eight thousand thrymses. Messetheines and Woruldtheines, id est, presbyteri & secularis Thani duo millia thrimsa. Missae LL. AEthelst. pag. 406. presbyteri, & secularis Thani jusjurandum in Anglo­rum lege reputatur aeque sacrum. — and sacerdos Thani rectitudine dignus est. The Priest was then accounted equall to a Knight, or Lord of the towne, and was commonly stiled by the name of, S ^r, as a Knight was, though now it be derided, and out of use.

Out of these lawes, and some others doth the lear­ned Antiquary, who is so well versed in the antiqui­ties, and monuments of our lawes and Kingdome, fully set downe the ancient dignity, and order of the Clergy.

— Magno sane in honore fuit universus clerus, Epist, ad Re­gen. cùm apud populum, & Proceres, tùm apud ipsos Reges Anglo saxonicos, nec precariâ hoc quidem concessione, sed ipsis confirmatum legibus. Sacerdos ad altare cele­brans minori Thano (1. Villa Domino at (que) militi) aequiparabatur, in censu capitis pariter aestimatus Tum in vita tum in fune­re. Concil. Haupam. pag. 515. pariter (que) aliàs honorandus: quia Thani rectitudine dignus est, inquit lex. Abbas five coenobiarcha inter Thanos maiores (quos Barones Regis appellârunt poste­ri) primicerius fuit. Episcopus similiter inter comi­tes ipsos maiores, qui integro fruebantur comitatu, Iu­ribus (que) comitivis. Archiepiscopus Duci & Satrapa amplissime provinciae pluribus gaudenti comitatibus praficiebatur. Vt & caeteriomnes Ecclesiastici compa­ribus [Page 5] suis omnibus secularibus. Amplectebantur siqui­dem Reges universum clerum laetâ fronte et ex eo semper sibi legebant primos à conciliis, primos adofficia Reip: obeunda; quippe sub his seculis apud ipsos solùm erat literarum clavis et scientiae. (dum militiae prorsus in­dulgerent Laici) factum (que) est interea, ut os sacerdotis o­raculum esset plebis, os Episcopi oraculum Regis et Re­ipub: primi igitur sedebant in omnibus Regni comi­tijs et tribunalibus Episcopi. In regali quidem Palatio cum Regni Magnatibus; in comitatu unà cum comite et Iustitiario comitatûs; in Turno vicecomitis cum vi­cecomite: in Hundredo cum Demino Hundredi: sic ut in promovenda iustitia usquequa (que), gladius gladium LL. Ed. Conf. cap. 3. adjuvaret. Et nihil inconsulto sacerdote (qui velut sa­burra in navi fuit) ageretur. Mutavit priscam hanc consuetudinem Gulielmus primus. — &c. —

IV. After the Conquest William the first divi­ded the Ecclesiasticall Courts from the secular, not with a purpose to diminish the Ecclesiastieall autho­rity. Imò Iureiurando confirmavit leges sancta matris LL. Guliel. in prooem. Ecclesiae, quoniam per eam Rex et Regnum solidum subsistendi habent fundamentum.

Yet the Bishops and Clergy doe not now expect or desire to enjoy their ancient splendour, amplitude, and dignityes, seeing the greatnesse of their Reve­nue, which should uphold the dignity, is long since taken away: so that well might Bishop Latimer, in his Sermon before King Edward, say, — We of the 1. Sermon. Clergy had too much; but that is taken away, and now we have too litle.] for there was no lesse in the whole [Page 6] taken from them, then many hundred thousands sterling, too incredible to be here briefly expressed. I will only mention one, for example: the Arch. Bi­shoprick of York, from which was taken 72 Man­ners and Lordships at one instant, by one of the last statutes of Hen. 8. and the like happened to Canter­bury, 37. H. 8. cap. 16. London, Lincolne, and all the rest: which, me­thinkes, should be enough to satisfy, that menshould not goe about to strip them of those poore pittances that are left unto them, being but small fragments in comparison of their ancient Patrimony, which the liberality and piety of the Primitivetimes had con­ferred onthem, when charity and piety was fervent and abounded with good works of all kinds: in so much that they thought no honour, or respect too much to be given to the Clergy, especially to the Reverend Fathers and Bishops of the Prime or­der.

V. From what hath been said, it is manifest, that the Bishops were equall to the greatest persons and estates of the kingdome, and had their votes and suf­frages for making lawes and constitutions for the first 500. yeares, before the Conquest. Whereby it appeares, that it is a very rash and ignorant asserti­on pag. 42. oftheexaminer. [ That Bishops at first were but ca­sually mounted to that height of extent andpower by William the Conquerour, themoreto indeere and ob­lige them.] And that it is only of grace that Bishops pag. 43. werefirst allowed place in Parliament.] And that they crept in by favour to serve aConquerours turne — pag. 44. [Page 7] and can derive no higher for sitting (as now they doe) inthehouse of Peeres, then an Act of Parliament, if so high.] Whereas it is manifest by all the lawes of the Saxon Kings both in the edition of Lambard, and of the English Councells, that the Bishops were the principall men in all ages, for ordayning of lawes and constitutions, in all the great Assemblies of the king­dome, then in use. And when matters, in question, were only Ecclesiasticall concerning the Church, and Religion, the Clergy sate by themselves, but when there was any thing to bee given and confirmed to the Church, then the Kings and Nobles did afford their presence and assistance, as appeares by divers Councells. Vid. Concil. Cloueshoviae. pag. 230.

VI. As for the title of Baron in that sense as it is now understood, it came among us, since the Con­quest; as the learned Glossary sheweth. pag. 81. Ad Anglos pervenisse videtur vocabulum, Baro, vel cum ipsis Normannis: vel cum Edovardus confessor auras mores (que) imbibisset Normanicos. — Huntingtoniensis aevi sui vocabulum usurpans, Histor: lib. 5. Adolwal­dum (qui occisus est An: Dn: 903.) Baronem Regis Edwardi senioris vocat: sed Author antiquior Floren­tius Wigorniensis, eundem ministrum Regis appellat, quo etiam vocabulo scriptores ipsi Saxonici passim usi sunt. So, in the Saxon Councells and charters, divers great men, who were no lesse then Thanes, doe stile and subscribethemselves, Ministros Regis: as in the charter of Edgar: page 486.

Ego Oswolde minister confirmavi.

[Page 8] Ego Elfwurde minister corroboravi.

And the like frequently occurre. These being the same in degree and substance, as Barons are now. Whereof the learned Glossary maketh three sorts. Hodiernos ita (que) nostros Barones è triplici fonte tripli­ces faciamus.

• 1. Feodales, seu praescriptitios, qui à priscis feodali­bus Baronibus orundi suam hodiè praescriptione tuentur dignitatem.
• 2. Evocatos, seu Rescriptitios, qui brevi Regio e­vocantur ad Parliamentum.
• 3. Diplomaticos, qui Regio diplomate hoc fastigi­um ascendunt.

Feodalium origineminter eos collocavero quibus Wil­lielmus senior Angliam totam dispertitus est, de se, tenendam, quorum (que) nomina in Domesdei paginis re­cognovit.

Rescriptitios ab aevo Regum Iohannis & Henrici tertij caput extalisse censeo.

Diplomaticos initium sumpsisse perhibent sub Richar­do secundo qui anno regni sui 8. ( 1. Christi. 1387.) Iohannem Beauchampe de Holte, in Baronem de Ki­derminster suo erexit diplomate.

Now the Bishops may be reckoned, both as Feu­dall Barons, in regard of their estates, and Baronies annexed to their Bishopricks: And also they are, E­vocati summoned, as Barons, and principall persons by the Kings writ unto Parliaments. But so were not all the Feudall Barons — quorum ingens erat multitu­do, quae plus minus 30000. millia, nullo lecto convocari [Page 9] poterat. Saith the learned Antiquary, page 79.

And, as not all the Feudall Barons, so not all the Abbots, and Priors, but a convenient number, some­times more, and sometimes lesse: as in 49. Henr. 3. there were called to Parliament, one hundred and two, besides five Deanes: Anno 1. Ed. 2. there were 56. Abbats; Anno 4. Ed. 3. about 33. and at other times more, or lesse, yet not so few as the Examiner relateth out of S ^r Ed. Cooke, (page 33.) who though he wereagreatmaster of Law, yet in matters of An­tiquity must yieldtothe Authour of the Glossary. Whom you may consult, page 4.

VII. The Examiner might have done well to have observed this distinction, and difference of Ba­rons; it being extant so long since, before he had ta­ken the boldnesse to talke so poorely of the Baronies of Bishops, to whom William the Conquerour did not adde much to endeere them. For he restrained them in many things, using the power of a Conque­rour, and took away much from them. For before his time they had part in fines and mulcts, and power of coyning money, as appeares by the lawes of king AEthelstan, de monetariis. pag. 399. and many other places. But these were soone after reserved to the Crowne, as principall prerogatives. And till the councell of Clarendon, under Hen. 2. the Clergy and Bishops enjoyed many more freedomes and priviledges, which then were abated, and much di­minished; about which contention Thomas Becket opposed the king, which the learned Glossary [Page 10] sheweth. page 82

Episcopi autem barones dici videntur propter nominis dignitatem, non quòd vassalagium pende­bant, aut seculare servitium: Hoc enim nostratibus ju­gum injecit amnium primus Willielmus senior. An. Grat. 1070 ut in eodem tradit Matth. Paris. Auxit magnopere Willielmus junior ut in historiola Ducum Normania & in LL. Edwardi confess.c.11. Sed post varias Collectationes aterno rebore domùm confirma­vit. Henr.2. Anno Dom. 1164. in magno concilio. Cla­rendonia habito, praesidente eidem ex ipsius mandato sacellano suo Iohanne de Oxonia, praesentibus (que) Archi­episcopis, Episcopis, Abbatibus, Prioribus, Comitibus & Baronibus Regni in hunc tonorem.

[...]

So that the Bishops, besides that they are called by the kings writ to Parliament, and thereby have the same right, that others have, yet since the Conquest they may be reckoned also among the Feudall Barons, [...] [Page 11] — ejus in respect de leur possessions. S. L' auncient Barones annexes a leur dignites.

Whereas therefore the Examiner saith. pag. 45. [ albeit the Bishops are usually said to hold of the king per Baroniam. Yet this happily may be meant rather of the Honour affixed to their plaees, which works it up into a dignity, then of the lands pertaining to them.] This is but grosse ignorance; for like feudall Barons suas sortiuntur Baronias solâ fundorum in vestitur â. In like manner, I take it, as the Earles of Arondell, both formerly and of late, being possessed of the Castle of Arondell, Honour, and Seignory, without other consideration, or creation to be an Earle, became Earles of Arondell, and the name, state, and Honour of the Earle of Arondell peaceably enjoyed. As Cambden relateth out of the Parliament Rolls, in Page 309 Sussex.

VIII. Further the Examiner saith, that the Bishops ought not to have the same legislative power, as the Temporall Barons, because these are for their sonnes and heires, and the others for their successours only.

This objection is frivolous; because the Bishops are as carefull for the preservation of the publique, wherein standeth the safety of themselves and their successours, as any Temporall Lords can be, and per­haps the more, because temporall Lords doe often fall into great wantand poverty, selling sometimes thevery head of their Baronies, and so may become very obnoxious, and also ambitious to recouer and rayse themselves to higher Honours, titles, or offi­ces: [Page 12] whereas the Bishops move not much higher, though they may get a better Bishoprick, which is not so great a temptation, asto make them forget themselves, or the trust reposedin them, but rather layes a greater obligation on them.

IX. Lastly whereas the Examiner saith; [ the Bi­shops Page 45. are Barones eleemosynarij, and would thence in­ferre, that they are but as arbitrary almsemen, like the poore Knights of Windsor which may be abated, or taken away at pleasure.]

This is but a spightfull inference upon the bare word, eleemosyna without the truesense of it. For as the learned Glossary sheweth. — [ Barones eleemo­synarij apud Stanfordum, & in jure nostro dicuntur Ar­chiepiscopi, Episcopi, Abbates, & Priores qui praedia suae Ecclesiae à Rege tenent per Baroniam: Baronias enim suas ex eleemosyna Regū perhibentur accepisse, li­cèt ipsa praedia aliorum saepe munificentiâ consequuti fuerint.] And sometimes, not only by the gift of other noble persons, but also themselves, did buy, and pur­chase many Mannours and Lands, conferring them on their successours, & being so bought, they cannot in justice be taken away, as if all had been given by the King and others, as meere almes.

X. Further, it is not to be forgotten, that the Kings and Benefactours, who gave lands, didlay heavy burdens, curses, and imprecations upon any thatshould everattemptto alilenate thē. And touch­ing the nature of these curses and imprecations, when lands are thus devoted unto God, much might [Page 13] be said to affrighten any one from attempting it. Levit. 27. 28. No devoted thing might be sold, or re­deemed; every devoted thing is most holy unto the Lord. For when things are once promised, consecra­ted, and confirmed unto God, it is not afterwards lawfull to take them away: as peter told Ana­nias. Acts 5. Who had given (or at least made a shew to give) the price of his land, as other zealous christians then did to pious uses: — Why Vers. 3, 4. hath Satan filled thy heart to lye unto the holy Ghost, and to keep back part of the price of the land? Whiles it remained was it not thine owne? And after it was sold was it not in thine owne power? But after he had gi­ven it, then it was not in his owne power to resume, or detaine a part. This text deserves well to be con­sidered on, before men proceed to arbitrary resum­ption of things consecrated to pious uses.

XI. Butconcerning the legislative power and votesof Bishops in making lawes, to regulate the commonwealth, and to preserve peace, and justice Concil. 402. among all sorts of men: there is not to be forgotten, an ancient law of king AEthelstan. That worthy king in his lawes hath one, chapter. 11. De officio Epi­scopi, & quid pertinet ad officium ejus.

Episcopo iure pertinet omnem rectitudinem promo­vere, Dei scilicet ac seculi imprimis debet paeem ordi­natum Dei instruere, quid ei iure sit agendum, & quid secularibus iudicare debeant. Debet enim sedulò pacem & concordiam operari cum seculi iudicibus qui rectum velle diligunt, & incompellationum adlegationem do­cere, [Page 14] ne quis alij perperàmagat in jurejurando, vel in Ordalio.

Nec pati debet aliquam circumventionem injusta mensurae, vel injusti ponderis, sed convenit ut per con­silium & testimonium eius omne legis scitum, et Burgi mensura & omne pondus, ponderis sit secundum dicti­onem ejus institutum, valde rectum.

Ne quis proximum suum seducat pro quo decidat in peccatum. Et semper debet Christianus providere, con­tra omnia quae praedicta sunt; & ideo debet se magis de pluribus intromittere; ut sciat quomodo grex agat, quem ad Dei manum custodire suscepit, ne diabolus eum lani­et, nec malum aliquid superseminet.

Nunquam erit populo bene consultum nec dignè Deo conservabitur, ubi lucrum impium & magis falsum diligitur. Ideo debent omnes amici Dei quod iniquum est evervare, quod justum est elevare; non patiut propter falsum & pecuniae quaestum se forisfaciant homines er­ga verè sapientem Deum, cui displicet omnis iniusti­tia.

Christianis autem omnibus necessarium est ut rectum diligant, & iniqua condemnent, & saltem sacris ordi­nibus evecti, iustum semper erigant, et prava deponant. Hinc debent Episcopi cum seculi Iudicibus interesse iudicijs, ne permittant si possint, ut illius culp â aliqua pravitatum germina pullulaverint.

Et sacerdotibus pertinet in suà diocesi, ut ad rectum sedulo quemcunque juvent, nec patiantur si possint, ut Christianus aliquis alij noceat, non potens impotenti, non summus infimo, non praelatus subditis, non dominus [Page 15] hominibus suis, vel servis aut liberis, molestus existat; et secundùm Episcopi dictionem, et per suam mensu­ram convenit, ut servi testamentales operentur super omnem Sciram, cui praeest.

Et rectum est, ut non sit aliqua mensurabilis virga longior quàm alia, sed per Episcopi mensuram omnes institutae sint, et exequatae per suam diocesim. Et omne pondus constet secundùm dictionem eius; et si aliquid controver siarum intersit, discernat. Episcopus.

Et uniuscuius (que), domini necesse proprium est, ut com­patiatur, et condescendat servis suis, sicut indulgentiùs poterit, qui à domino Deo empti sunt, aeque chari ser­vus et liber, et omnes codem praetio redemit: et omnes sumus Dei necessariò servi, et sic judicabit nobis siout antejudicavimus eis quibus judicium super habuimus in terris.

It is manifest hereby, that by the ancient lawes of this kingdome, what trust, charge, and care is repo­sed in the Bishops, not only to direct matters Ecclesi­asticall, but also to assist, rule and guide temporall affayres, to preserve peace. Iustice, upright dealing just and true administration of severall offices and duties, whereby religion is much advanced and ad­orned, when men are honest and upright in their actions, contracts, bargaines, andcivill dealings a­mongthemselves. So that they may not clash, or op­pose Religion, or such Acts, as have speciall relation to Religion: for all publique Statutes, Acts, and Constitutions for the most part doe in some degree more or lesse, trench upon Religion, and the furthe­rance, [Page 16] or hinderance thereof. So that they can hardly beduly and rightly enacted and framed, without the advise, counsell, & assistance of Bishops & the Clergy.

XII. And though some Canons may seem to forbid the Bishops and Clergy to intermeddle with secular affayres, yet that is not absolutely forbidden, but in a qualified sense, as in the famous councell of Cloveshoe, under Cuthbert Arch-Bishop of Canter­bury. An. 747. Canon. 1. negotijs secularibus plus quàm Dei servitijs, quod ab sit, subditus existit. To attend secular affayres more then spirituall, and to be wholy imployed and conversant in temporall mat­ters, without due regard to the better part: but, it will not hinder sacred studies, nor the diligent prea­ching of the Gospell, that some men at convenient times, have a charge and oversight of temporall af­fayres, and the carriage of publique businesse. And concerning this see more, in Bishop Davenants de­terminations at Cambridge. Quaest. 11. Civilis Iuris­dictio jure conceditur personis Ecclesiasticis.

XIII. Thus much might serve for reply to the Examiner, especially upon the fift reason which I hold to be the only thing materiall in the whole dis­course, for the rest will appeare to be needlesse, if this be cleared. But if he would look back to former times, he shall find that our kingdome and govern­ment followed the ancient manner of Gods owne people of Israel: whose Ceremonies and Ritualls, though they now be abolished, yetthe generall rules of Iustice, Equity, Government and Order, doe still [Page 17] remaine. And as God made the Priesthood then Ho­nourable in the Common-wealth, and committed a great part of the government unto them; so doubt­lessenow underthe Gospell, the Priesthood ought to be Honourable, and to have a principall part in the ruling and governing of the state and Common­wealth. To be a Priest in Israel was to be a chiefe man. Levit. 21. 4. and therefore in all their Courts of Iu­stice, the Priests and Levites were chiefe men in au­thority for deciding of all causes, both in the great Court of Sanhedrim at Ierusalem, (which was a con­tinuation of the 70. Elders, appointed by God him­selfe: Numb. 11. and was answerable in authority to our Parliament) and also in the lesser Sanhedrims, forthe government of cities in every Tribe, there were alwaies two allotted of the Tribe of Levi for assistance, as Iosephus sheweth. Lib. 4. cap. 8. Anti­quit. Oppidatim praesint septem viri probatae virtutis etiustitiae cultores: Singulis Magistratibus attribuan­tur duo Ministri de Tribu Levitica.

And if these could not determine the businesse in question, thenthey did appeale to the Sanhedrim, at Ierusalem. When David was old and neare his death, he appoynted Solomon to be king after him, and caused a Parliament of all Israel to be assembled, wherein he gathered together, all the Princes of Israel with the Priests and Levites. 1. Chron, 24. 1, 2. In this great Parliament the Priests and Levites were not omitted, nor in any Court of Iustice in that kingdome. For as it is vers. 4. there were sixe thou­sand [Page 18] of them appointed Officers and Iudges through­outthe land of Israel. Which is the thing that now many of our common people doe much dislike, not well induring a few Iustices of peace to be of the Clergy: whereas wee have the example of David guided and directed by the spirit of God, as the text saith. 1. Chron. 28. 12, 13, 19. so disposing and orde­ring the Levites, that he appointed some for the out­ward businesse over Israel, for Officers and Iudges. A thousand and seven hundred were Officers of Is­rael on this side Iordan, in all busines of the Lord, and in the seruice of the King. This text is very plaine to prove that the same man may be employed in Eccle­siasticall matters of the Church, as also in the Kings service. So verse. 32. David appointed two thou­sand and seven hundred chiefe Fathers to bee Rulers of the Reubenites, Gadites, & the halfe Tribe of Ma­nasses, who were beyond Jordan, for every matter pertaining to God, and affayres of the king. And cap. 26. 14. Zecharias a Levite is commended for a wise Counsellour. But that now any of the Tribe of Levi should be Counsellours, Iudges, or Officers, unto Princes is accounted, by some, an unlawfullthing, or at least, not very commendable: whereas wee see by this very law and direction of king David, thatthe Levites might attend businesse belonging to the wor­ship and service of God, and instruction of the peo­ple, as also the publike service & affayres of the King and State. And so the Commentaries doe affirme; as Lavater. in cap. 23. per civitates & provincias ju­dicia [Page 19] Ecclesiastica & civilia exercuerunt. — Non omnes qui consolatione & doctrinâ indigebant potue­runt Hierosolymam venire, multi quotidie docendi et erigendi erant: fuerunt igitur passim qui eos docuerunt. Habuerunt autem illi sub se alios quo (que). Vacabant sa­cris literis, alios instituebant, et causas juxta legem di­vinam decernebant. In cap. 24. sic Petr. Martyr. in 2. Reg. cap. 11.

Neither will it hinderthe study of divinity or care of preaching the Gospell, if some fit men be imploy­ed sometimes, in the government of the publique: for the well ordering of the publique, and preserva­tion of peace and justice will more advance the Gos­pell, and abundantly countervaile some intermission of preaching, which cannot possibly be so continual­ly attended, but that there will be some hinderances not only by sicknesse, and private businesses of ones family and estate, but also by publique Meetings, Convocations, Synods, and such generall Assem­blies.

Besides, the Commonwealth and Church is a mixt government, and consisteth of all manner of persons of infinitly severall conditions and trades, and courses oflife, and seeing the Clergy are ming­led among them, and infinitly intangled especially of late dayes, being made subject (which they were not before) to all temporall lawes, suits, arrests, executi­ons, imprisonments, impositions, taxes, charges, and subsidies; it is but reasonable that the Clergy should have some of their owne tribe in place of judicature [Page 20] and office, to see the inferiour membersdefended, and saire carriage shewed to them. Aristotle saith lib. 3. polit. cap. 1. Civis nulla re aliâ magis definitur quàm participatione judicij ac magistratûs. Whosoe­ver are citizens in a Commonwealth, meaning pro­perly citizens, and of the better sort, (not labourers, porters, strangers, or aliens) they ought to have voyce and suffrage, and to be capable of Magistracy and office, if they shall be found worthy and fit for it, by any excellent parts of learning, knowledge and wisdome. Wherein the Clergy have some opportu­nity to excell others, and often doe goe beyond the ordinary sort of men that are not bred up in learning, Arts, and Sciences.

And as S ^r Francis Bacon observes, out of the anci­ent Roman law, there belongs to every subject cer­taine common rights and priviledges, which cannot be taken from any of them. 1. Ius civitatis. 2. Ius connubij. 3. Ius suffragii. 4. Ius petitionis, or Ius Honorum. These foure ordinary rights and free­domes, are by the customes and originall principles of humane societies due to all citizens of quality, such as ever the Clergy have been esteemed, and still ought to be, if men will professe themselves to be true Christians indeed, and to honour the messen­gers and Embassadours of our Saviour Christ, whom he hath appointed to instruct and governe his Church and people. The Pope deprived his Clergy of the two former rights, by accounting them sepa­rate and exempt from the common lawes ofall king­domes, [Page 21] and forbidding marriage to them. And now our zealous professours would deprive our Clergy of the two later priviledges; the right of voyce, and suffrage in all principall businesses: and the right of honour and office, whereof they would make them uncapable, and render them base, and equall only to the inferiour multitude, and scumme of the peo­ple.

XV. If the Clergy might now enjoy those an­cient priviledges, which are mentioned in scripture, as Genes. 47. of Pharaoh; who in the time of famine and great extreamity spared the Priests lands, and al­lowed them their portion, so that they sold not their lands, then men might talke of applying their studies and meddling with no common or worldly busines. Artaxerxes the Persian king, ( EZra. 7. 24.) com­manded, that for all the Priests and Levites and Mi­nisters of the house of God, it should not be lawfull to impose toll, tribute, or custome upon them. Whereas now the Clergy being made subject to the most sort of payments, charges, and impositions in a greater proportion commonly then other men; it is but re­quisite, that some of the Clergy should have voyce and suffrage in the lawes, that are enacted for their government and taxation.

XVI. Besides, the course of lawes and go­vernment is not much altered from what was in those dayes, when holy Fathers spake of wholy ap­plying themselves to prayers and sacred studies, and diligent preaching of the Gospell: as if they were to [Page 22] doe nothing else, not so much as to provide bread, or necessaries for their families, for then they lived most part single, in Colledges and Monasteries, and societies under the Bishops, where all provisions were made by Stewards and Officers, appointed, for the purpose, so that their cares in all those re­spects were lessened and abated much; that they might apply their studies only, and forsake all worldly businesse, which now they cannot forgoe being secular and parochiall Ministers, married men, and thereby charged with children and families; and also made obnoxious to all lawes, suits, and impositions, without any exemptions or priviledges. So that it is but a monasticall, and in part a Popish fancy, to talke so much of applying their studies, and only preaching the Gospell: for by many a writ and warrant from severall Courts of Iustice, and Constables, they shall be hindred and comman­ded to attend secular and litigious proceedings, and answer to all bills of complaint, declarations, and vexations, that shall hinder their preaching and stu­dies, more then a voluntary imployment, at fit sea­sons, in some publique Office.

XVII. Further it is but a Popish opinion that Regimen Ecclesiasticum est distinctum à politico. De Rom. Pontif. l. 1. cap. 5. Which Bellarmine maintaines, (taking it for granted on both sides) only to advance the Papacy, above Kings and Princes, and to exempt the Clergy from secular authority. Calvin affirmes as much. Instit. lib. 4. cap. 11. §. 1. but under correction, I take it to bee [Page 23] a great errour, though now it is the common Idoll of every mans fancy: because that in our kingdome (and so perhaps in most others) the Courts of Iu­stice are divided, the Civill from the Ecclesiasticall: which yet I doe not think was the ancient manner, nor to be the best course, though things be sleighted, as now they are at this present, it is not safe to change; for in a Commonwealth, the Courts of Iu­stice that have been long setled, cannot easily be alte­red.

XVIII. There is a discourse about Puritans, Pag. 29. lately published by a Lawyer one M ^r Parker, where­in he excepts against Calvin (and I think not amisse) in that he doth, according to the Popish grounds, maintaine, that spirituall jurisdiction differs from temporall, because it proposeth not the same ends, but severall, which by severall meanes, may be better compassed: But (saith he) the spirituall Magistrate (as I conceive) can purpose no other end, then which the secular ought to ayme at; for either the Prince ought to have no care at all, of the honour of God, and the good of men, and that which is the prime meane of both, true Religion; or else his ends must be the same, which the Prelate aymes at, viz: to vin­dicate Religion by removing or correcting scanda­lous offendours. Secondly to preserve the innocent from contagion by the separation of of open offendors. Thirdly to prevent further obduration, or to pro­cure the amendment of such as have trangressed, by wholesome chastisment. Thus he, and I thinke not [Page 24] much amisse, the scope and end of both, is the same; and as he saith, a little before in his discourse. — Clergy men being as well citizens of the Common­wealth, as sonnes of the Church, and their cases impor­ting as well perturbance of the state, as annoyance to the Church, there can be but one head, which ought to have command over both, and in both. It is manifest also, that many cases are partly temporall, and partly spiri­tuall, and that scarce any is so temporall, but that it re­lates in some order to spirituall things, or any so spiri­tuall but that it hath some relation to temporall things, so that the true subject of Ecclesiasticall and civill Iu­stice, cannot rightly be divided.

I demand then, why should the Courts bee divi­ded? which was done first among us by William the Conquerour. And why should not there bee Iudges partly spirituall, as well as temporall in all Courts? (saving for the danger of innovation:) as it was anciently among the Saxons? or at least, why should not the supreame Court of Iustice, which is to give law to all other Courts, bee well tempered, and mingled with all sorts of men, Ecclesiasticall and Civill, the wisest, and choycest that can be found in the whole state, and kingdome? Why not Priests and Levites admitted into the number, as well as in the Sanhedrim of the Iewish commonwealth, which was equall to our Parliament, and was instituted by God himselfe? And I take it, there can be no just ex­ception, but that our Christian Commonwealths may most safely follow the generall Rules of policy [Page 25] and government, which God ordained among his owne chosen people, without any imputation of Iudaisme. Now, among them, some of the Priests and Levites, were not only Iudges and Elders in their own cities, which were allowed them to the num­ber of 48. in the whole but sate with the Elders of o­ther cities, and were Iudges and Officers over Israel. 1. Chron. 26. 29. Yea, many things, by Gods law, were wholy and chiefly reserved to the knowledge and sentence of Levit. 13. Num. 5. Deut. 21. 19. Deut. 21. the Priests, as Leprosy, Iealousy, Inquisition for murder, False witnesse and such like (which now among us for most part belong to the commonlaw) in which cases the people & Elders, were to consult the Priests, and take direction from them. And so Bertram: in his treatise de politia Iudaica. cap. 9. doth make it manifest: — prorsus est extra contro­versiam judices municipales cujusque civitatis, ut vocantur, seniores suisse chiliarchos, centuriones, quin­quagenarios, & decuriones, tot quot esse poterant in quâque civitate, ita ut ex illis Levitae quidam in prae­fectos assumerentur, si modò in ea aliquot erant Levi­tae; sin minùs ex proxima urbe Levitis assignata advo­cabantur. — And againe in his cap. 10. — David in civili politia dicitur ex Levitis destinâsse Iudices & praefectos sexies mille. Ex Levitis Iudices & prae­fecti assumpti sunt hac ratione, ut primùm essent ex Le­vitis quidam, qui Assessores essent Iudicum ordinario­rum & municipalium, qui seniores dicebantur: qui & aliquando de plano (ut vulgò lequuntur) judicarent de rebus levioribus, quales erant pecuniariae, vel soli, vel assumpto uno aliquo ex loci vel urbis senioribus: de­inde [Page 26] ut essent etiam quidam alij qui judicatas res exe­querentur; vel certe quod verisimilius est, qui assessores erant judicum ordinariorum, qui et ipsi de rebus pecu­niarijs cognoscerent et judicarent, ipsam (que) rem judica­tam exequerentur. — &c. — Ex eâdem familiâ ad­hibiti sunt, ad regendam Ecclesiam & ad politiam ci­vilem gubernandam: ita tamen ut nulla esset utrius (que) politiae confusio & permixtio. — & cap. 11. — ad utrum (que) judicium (tam civile, quàm Ecclesiasticum) adhibiti sunt Levitae in praefectos, eodem videlicet modo, quo eos ad id muneris designaverat David. &c.

Thus, and much more to this purpose, Bertram doth often throughout his book deliver his judge­ment that the Priests and Levites were Iudges in the civill Courts of Iustice, and not only in the Ecclesi­asticall. To this Sigonius agreeth lib. 6 de repub: Heb. cap. 7. speaking of the Sanhedrim. — Inivere hoc Conci­lium Rex cum principibus populi, ac septuaginta senio­ribus populi & Pontifex cum Principibus sacerdotum, & scribis, id est legis doctoribus, ut perspicere liquet ex E­vangelijs, ubi agitur de judicio Christi. Voco autē prin­cipes populi duodecim principes tribuum qui Regi assi­debant. Seniores verò ipsos, quos dixi septuaginta populi seniores. Quare Ioseph ab Arimath. Senator sive decurio Nobilis idem Concilij particeps fuit. Siquidem scriptū est, ipsum cum caeteris assensum damnationi Christi non praebuisse. Principes autem sacerdotum dico illos, qui vicenis, quaternis sacerdotum classibus seu vicibus singuli singulis praeerant: Scribas verò ipsos legis do­ctores quos Prophetas Iosephus vocavit. To both these judicious Abbreviators of the Iewish govern­ment, [Page 27] the learned Reader, for his further satisfacti­on, may adde the late excellent Annotations of C. L' Emperour upon the 11. chapter of Bertram cited before.

Now, seeing David appointed no lesse then sixe thousand Levites for the outward businesses, it could not bee but that many of them were imployed in their secular and civill affayres. (Whereas now there is not one hundred of the Clergy imployed throughout our whole Kingdome, there being not above three or foure Iustices of peace in a whole shire.) The Priests, the sonnes of Levi (saith God) shall come neare, or forth (out of the cities where they were placed in every tribe) and by their word shall all strife and plague be tryed. Remembring al­wayes that doubtfull and weighty matters were re­served to the Councell of Priests and Iudges, that sate in the place, which the Lord did chuse for the Arke to rest in. If there come a matter too hard for Deut. 17. 8. thee in judgement between blood and blood, cause and cause, plague and plague of matters in question within thy gates thou shalt arise and goe upto the place, which the Lord thy God shall choose, and shalt repayre unto the Priests, the Levites, and unto the Iudge that shall be in those dayes, and aske and they shall shew thee the sentence ofjudgemene, and thou shalt doe according to that which they of the place shew thee, and shall observe to doe, according to all that they informe thee: thou shalt not decline from the thing which they shall shew thee, neither to the right hand nor to the left. And the [Page 28] man that will doe presum ptuously in not hearkning to the Priest, that standeth before the Lord thy God to mi­nister there, or unto the Iudge, that man shall dye.

XIX. This Councell or Senate of the Elders residing at Ierusalem in Iehosaphats time, (who no 2. Chron. 19. doubt did not infringe, but rather observe the te­nor of the law) consisted of Levites and of Priests, and of the heads of the families of Israel: and had Amarias the High Priest chiefe over them in all mat­ters of the Lord, as Zebediah a Ruler of the house of Iudah (chiefe) for all the Kings affayres; and was a continuance of the 70. Elders, which God adjoyn­ed Num. 11. 16. unto Moses, to beare the burden of the people with him. And this Court cannot be better resem­bled among us, then to our Parliament; for there was but one Councell of that nature in the whole land of Iury, and that consisting of some of the chiefest of every tribe; and they not only debated and conclu­ded the highest affayres of that Realme, as warre, peace, appeales from all places, punishments of whole Cities and Tribes and such like; but also ru­led and rectified all Cases omitted, or doubted in Moses law; and were obeyed throughout the land upon paine of loosing goods, or life, or being fore­ver excluded from the people of God, as they pro­nounced, or prescribed. Thus the Reverend and learned Bishop Bilson in his perpetuall Govern: cap. 4. Besides, in every city there were private and peculiar Rulers (7. in number as Iosephus saith) and also to every Magistracy in those cities, there was allotted [Page 29] two of the tribe of Levi for assistance, as Iosephus Antiquit. lib. 4. cap 8. witnesseth; and if these could not determine the busi­nesse, thenthey did appeale to Ierusalem to the great Sanhedrim. Now, God appoynted these offices and dignities, and power of Iudicature to the Priests and Levites, besides their attendance upon Gods service, which they might persorme duly, intheir courses, and yet be helpfull to the Common-wealth, in government; for they did not neglect their prin­cipall duty to attend the sacrifices and service of God, and to instruct the people in the law of God, together with the duties of Iudicature and Iusticeto be performed in the Common-wealth. Yea some­times the principall Iudges, were chosen out of the tribe of Levi, as at the beginning of their Common­wealth, Moses himselfe, the greatest Prophet and Prince that ever almost was among them: So after in succeeding times Eli the High Priest was the Iudge in his time: so Samuel a Levite. And also af­ter the captivity of Babylon, for some five hundred yeares till the comming of Christ, the Priesthood had the greatest stroke in the government; as un­der the Macchabees, wherein they performed their duty very worthily: and it pleased God to make that family as victorious as any other almost, that ever governed that Commonwealth. As S ^r Walter Rawlie saith. lib. 2. cap. 15. If thus it were among them, why then should any in these dayes bee so much displeased that a Bishop, or a Clergy-man should have any part in the government of the [Page 30] Common-wealth, or assistance of government, for the better ordering and directing of Iudgement, as to be Counsellour to a Prrnce, as Zechariah the Levite was, or to be Iustice of peace in the country, who handles matters of Equity & good Conscience, for preserving of publique peace, order, and quietnes a­mong neighbours, wherein happens many businesses that depend much upon the conscience of a Iustice, & the equitable rules of the scripture, whereof Cler­gy men are the most competent Interpreters. As also many causes happen touching the estates and per­sons of the Clergy, who have little reason to be sub­ject only to secular Iudges, without some of their owne tribe on thebench to see faire carriage and in­different dealing.

XX. Besides I cannot omit one passage in a late dis­course, entitled. An Assertion of the Scottish govern­ment. Wherein the Authour cap. 3. makes his argu­ment for ruling Elders thus. — Whatsoever kind of Officers the Iewish Church had, not as it was Iewish, but as it was a Church, the same ought the christian Church to have also, but the Iewish Church had El­ders. — &c. — for Elders is not now my businesse, but it may be likewise inferred: But the Iewish Church, and commonwealth, had Priests & Levites, mingled and joyned together, with the Princes of thetribes, in all civill courts of Iustice, and Assemblies of the state; therefore ought it to be so now in the Christian Church That it was so anciently among them, is suf­ficiently proved already, but especially when busines [Page 31] concerned God & matters of religiō, then the Priests and Levites were principall and necessary men to be imployed: as may clearely appeare by the doings of King David, about removing of the Arke, to the place, that he had provided for it: Whereupon King Iames hath written a very pious and excellent medi­tation, pag: 81. upon the 1. Chron. 15. some of whose words I will here recite. When the Arke of God 2. Sam. 6. (whereunto they sought not in the dayes of Saul) had continued long at Kiriath jearim; David out of his zeale and piety was moved to prepare a Tent for it, inthe city of David, and when he began to re­move it, hee called a great Assembly of principall men, but did not make that use of the Priests and Levites as he ought to have done, and therefore the Action prospered not, but there happened a terrible Iudgement upon VZZah, which hindred the pro­gresse of the good worke, and David was afraid of 1. Chron. 13. 12. God that day, saying, How shall I bring the Arke of God home to me? So the Arke rested in the house of Obed Edom. But afterwards upō better advise David perceived his errour, and he confesseth it. cap. 15. 12, 13. speaking to the chiefe of the Priests and Levites. Sanctify your selves, both yee and your brethren that you may bring up the Arke of the Lord God. For be­cause you did it not at the first, The Lord God made a breach upon us, for that we sought him not, after the due Order.

This was a great and a godly worke, that was then intended, and therefore King David called a great [Page 32] Parliament about it: 1. of the Elders of Israel. 2. of the captaines of thousands and hundreds, whose names and praises are recorded. 1. Chron. 11. 26. 3. the Priests and Levites, who did it not at the first. ver. 13.

But now upon better advise, King David assem­bled with the first, the children of Aaron and the Le­vites: ver. 4. So that men of all Estates were now pre­sent in this godly worke: This is to bee marked well of Princes, and of all those of any high calling or degree that hath to doe in Gods cause: David doth nothing in matters pertaining to God without the presence and especiall concurrence of Gods Mini­sters, appointed to bee spirituall rulers in Gods Church. And at the first meant to convay the same Arke to Ierusalem, finding their absence and want of their Counsell hurtfull: therefore hee saith to them. — Yee are the chiefe Fathers of the Levites. Because yee did it not at the first. Thus saith King Iames of blessed memory; but now there is a genera­tion of men, who doe not thinke the Clergy ne­cessary men to bee consulted: that will interpret scri­ptures, remove the Arke, as it were, and doe things without the presence, vote, and suffrage of the chiefe Fathers of the Levites: which how it agreeth with this pious example of King David, and King Iames meditation upon it, I leave to be considered, and sub­mit to better judgements.

XXI. The first frame of our English Com­monwealth, was so fetled and ordered, by the Saxon [Page 33] Kings, when once they became Christians: That the Selden not. ad Eadmer. p. 166. Bishop in his Diocesse, together with the Earle of the County (and so their deputies in inferior Courts under them) should be equall Iudges together upon the same Bench, in the same Courts, and there deter­mineall causes: in the forenoon, Church-matters; and in the afternoon secular busines. As Bishop Iewell in part observeth, in his Defence of the Apology part. 6. pag. 522. This course continued, till William the Conquerour, and perhaps it had been very hap­py for our Commonwealth, if the frame of our laws and Courts, had so still continued mingled together; for many reasons that I will not now insist upon.

XXII. The Conquerour first separated the Temporall Courts, from the Ecclesiasticall, yet not diminishing the authority of the Churches Iu­risdiction, which by his oath he confirmed, and pro­mised Proeem. LL. Guil. 1. to preserve, affirming quòd per Ecclesiam Rex & Regnum solidum habent subsistendi fundamentum.

So that he subverted not the Ecclesiasticall power and Iurisdiction, but as formerly in the County, or in the Hundred, so now in the Bishops Court, all Eccle­siasticall causes were heard and determined: for the old manner the lawes of King Edgar doe shew it. cap. 5. Glossar. p. 315 Lam­bard. p. 80.

Intersit unusquis (que) Hundredi Gemoto; ut superiùs est praescriptum; & habentur burgemoti tres quotan­nis: duo verò scire gemoti; de istis adsunto loci Episco­pus & Aldermanus, doceat (que) alter jus divinum, alter seculare. In Hundredo aderant Thani (quos Baroues vo­cant [Page 34] posteri (ut patet è LL: Ethelredi. cap. 1. ipsi (que) judi­ces Ecclesiastici, cum partis illius clero: in Hundredo enim non minùs quàm in comitatu unà tunc ageban­tur, quae ad forum pertinent Ecclesiasticum, & quae ad seculare: donec Gulielmus Conquestor divisis jurisdi­ctionibus hanc ab illa separavit.

XXIII. For the Division of the Courts, and the erection of the Ecclesiasticall to sit by themselves, under the Bishop and Archdeacon, it appeares by the Charter of King William to the Deane and Chapter of Lincolne. And although it be sent in the direction by name to them only, yet it seems, it grew afterwards to be a generall law, no otherwise then the statute of circumspecte agatis that hath a speciall reference only to the Bishop of Norwich: as M ^r Selden relateth, in his history of Tithes. cap. 14. §. 1. in his Ianus. lib. 2. §. 14. and in his not: ad Eadmer. pag. 167. The words of it, as they are recorded are.

Willielmus gratiâ Dei Rex Anglorum Comitibus, vicecomitibus, & omnibus Francigenis, & Anglis, qui in Episcopatu Remigij Episcopiterras habent, salutem. Sciatis vos omnes & caeteri mei fideles, qui in Anglia authoritate praecipio, ut nullus Episcopus vel Archidi­aconus de legibus Episcopalibus ampliùs in Hundret placita teneant, nec causam quae ad Regimen anima­rum pertinet, ad judicium secularium hominum addu­cant, sed quicunque secundùm Episcopales leges, de qua­cun (que) causâ vel culpâ interpellatus fuerit, ad locum quem ad hoc Episcopus elegerit & nominaverit, veni­at, ibi (que) de causa sua respondeat, & non secundùm [Page 35] Hundret, sed secundum Canones & Episcopales leges, rectum Deo & Episcopo suo faciat. Which I the rather transcribe here, because also it seemes togive the o­riginall of the Bishops Consistory, as it sits with us, divided from the hundred, or County Court, wherewith in the Saxon's time it was joyned: And in the same law of his is further added, — Hoc eti­am defendo, ut nullus laicus homo de legibus, quae ad Episcopum pertinent se intromittat. — &c. Thus M. Selden.] only the words of the charter are more ful­ly recited out of the Records, by another learned Authour. — Si verô aliquis per superbiam elatus, ad ju­stitiam Episcopalem venire noluerit, vocetur semel, et secundò, et tertio: Quòd si nec sic ad emendationem ve­nerit, excommunicetur. Et si opus fuerit, ad hoc vin­dicandum, fortitudo et justitia Regis, vel Vicecomitis adhibeatur. Ille autem qui vocatus ad justitiam E­piscopi venirenoluerit, pro unaquaque vocatione legem Episcopalem emendabit. Hoc etiam defendo, et meâ au­thoritate interdico, ne ullus Vicecomes, aut Praepositus, aut minister Regis, nec aliquis Laicus homo de legibus, quae ad Episcopum pertinent, se intromittat, nec aliquis laicus homo alium hominem sine justitia Episcopi ad judicium adducat. Iudicium verò in nullum locum por­tetur, nisi in Episcopali sede, aut in illo loco, quem ad hoc Episcopus constituerit. And the punishment for disobedience to the Ecclesiasticall Iudges, was much alike as formerly was enacted under the Saxon Kings. As by King Alured. Si quis Dei rectitudines Con. p. 377. aliquas disforciet, reddat Lashlite cum Dacis, Witam [Page 36] cum Anglis. And the same law is afterwards confirm­ed and renewed by King Canutus, & by other Kings; Concil p. 568. cap. 17. whereby it appeares how before the Conquest, and likewise after, for a long time, the authority and juris­diction of the Church, was maintained and upheld by the setled lawes of the Kingdome. How they had power in their Courts, to excomunicate, and further by the helpe of the King, and the Sheriffe, to proceed against stubborne offendors and such asopposed, or contemned their authority; so that here is the present practise and law confirmed, by many hundred yeares continuance.

And this is according to that which Iustinian saith of all spirituall causes in the Novell. 123. si pro crimi­nal: si Ecclesiasticum negotium sit, nullam communio­nem habento civiles Magistratus, cum ea disceptatione, sed religiosissimi Episcopi negotio finem imponunto. If it be an Ecclesiasticall suite, let the civill Magistrates have nothing to doe there with that plea, but let the Bishops end it. Whereby it appeares that Prohibiti­ons from the temporall courts were not then allow­able, which certainly came not into use, till after the Councell of Clarendon under Hen. 2. Wherein the Clergy were inforced to appeare in the temporall Courts, one Canon thereof being. — Clerici ac­cusati de quacun (que) re, summoniti à Iustitiario Regis, veniant in Curiam responsuri ibidem de hoc, unde vi­debitur Curiae Regis quid ibi sit respondendum, et in Curia Ecclesiastica unde videbitur, quod ibi sit re­spondendum. [Page 37] Ita quod Regis Iustitiarius mittet in Curiam sanctae Ecclesiae ad videndum quo modo res ibi tractabitur. Et si Clericus vel confessus, vel convictus fuerit, non debet eum de caetero Ecclesia tueri. But touching this and the rest of the Constitutions in Anno 1164. that Councell Matth: Paris: doth sharply inveigh a­gainst them: — Hancrecognitionem sive recordatio­nem de consuetudinibus et libertatibus iniquis et dig­nitatibus Deo detestabilibus, Archiepiscopi, Episcopi, et Clerus, cum Comitibus, Baronibus, et proceris jura­verunt. And as he addeth. His ita (que) gestis potestas laica in res et personas Ecclesiasticas, omnia pro libitu, Ecclesiastico jure contempto, tacentibus aut vix mur­murantibus Episcopis, potius quàm resistentibus, usur­pabant. And this appeareth also by that which M ^r Selden relateth in his notes upon Eadmer pag. 168. that long after in Ed. 1. time, the Clergy had so many oppositions and hinderances in their procee­dings, from the temporall Courts, that they exhibi­ted a petitionin Parliament, wherein they recitethe grant and Constitution of Will: 1. allowing them their owne Courts by themselves, and specify their complaints particularly, which hecalleth, Gra­vamina Ecclesiae Anglicanae, and saith they arethose Vid. Selden. mentioned in the Proeme of Articuli cleri. And in this age we have great cause to complaine of Prohi­bitions, but whereof I will say no more now: as for the temporall Courts the Conquerour appointed them to follow his Court Royall, which custome continued for many yeares, till under King Iohn at [Page 38] the instant request of the Nobility it was granted. — Vt communia placita non sequentur curiam ( 1. Regis) Sed in loco certo tenerentur. That the Courts of Iustice for common pleas should not follow the Kings Court Royall but be held in a place certaine, as now commonly they are in Westminster Hall. Whereas before the Kings appointed one Grand-Lord chiefe Iustice of all England, who for his authority and power, was a greater Officer both of State and Iustice, then any in these last A­ges, ever since that Office was diminished by King Ed. 1. and most of those great Iustices were Bishops, till at length the Pope forbad it.

XXIIII. But the Courts being now divided in the kingdome many hundred yeares, the Ancient manner is forgotten and unknowne, save only to the learned, and the scarres of the Norman Conquest are so overgrowne, that few men are sensible, what re­liques of slavery doe still remaine upon us, by chan­ging the order of the Courts, the language of the law, in great part, with other things that I will not now mention. But being so setled by the Conqueror, and continued by his successours, the Temporall Courts in processe of time, grew too powerfull for the Ecclesiasticall, and by their Injunctions and prohibitions stopt many proceedings, especially af­ter the Councell of Clarendon. under Hen. 2. Where­in the power of the Clergy was much abated. And all Ecclesiasticall Iurisdiction so crushed that it con­tinued lame ever after: although the Clergy by ap­peales [Page 39] to Rome, did oftentimes help themselves, and much molest their adversaries. At length under Hen. 8. upon his breach with the Pope, the Ecclesi­asticall Iurisdiction was much abridged and restrai­ned in very many particulars, and reduced to a nar­row compasse, becoming much more subject and obnoxious to the Injunctions, orders, and prohi­bitions of all the Temporall Courts, that now I mar­vell that any should complaine, or envy at their power or greatnes, there being no cause of any value, or moment but by one order or other, isdrawne from them to the Temporall Courts. And now at last there want not some, that would have all Ecclesiasti­call Authority and Iurisdiction, either wholy sup­pressed from the first Court to the last, or at least so abated, mingled, or changed that what forme, or force of government shall be left remaining, seems very uncertaine. But if Presbyteries and such like consistories of the forraigne and new fangled devi­sing were erected, there will follow great confusion and disorder to the infinite disturbance of peace and quietnesse in the kingdome, by alteration ofso many lawes and customes, and of the common law it selfe, whereby the kingdome hath been governed so ma­ny yeares, and setled in peace, and all mens estates and lands held in certaine possession. For such great and universall changes as will follow upon the disso­lution of the Hierarchy, and taking away their votes in Parliament, and other eminent parts of govern­ment, will produce such ill events, and troublesome [Page 40] distractions, as will not be pacified within the com­passe of any mans life now in being. — Which I heartily pray God to prevent, and by his good spirit so to direct and blesse the endeavours and counsells of the supreame Court of Iustice, now assembled, that all our feares and doubts may bee quieted, and the voice of peace and truth restored to our dwel­lings.

But because what I have formerly said, touching the uniting of the Ecclesiasticall and Temporall Courts, may seem strange to many, I desire not to bee mistaken, as if I perswaded any innovation or change of setled lawes, and Courts of Iustice. Which would be a thing of dangerous consequence, that no wise man will advise, but leave all to the wisdome of su­periours, to whom properly it belongs. Only I will adde a few lines touching the auncient forme and manner of government in the Empire, after that the Emperours became Christians from whom 'tis like­ly, the example was taken both among us, and in o­ther kingdomes.

XXV. Touching the division of the Courts temporall from the spirituall: though Will: the Con­querour began the separation with us in England, yet there was the like done long before, even by Con­stantine the great the first Christian Emperour: who first gave leave to the Christian Bishops to meet in Councells, and to make Canons to governe the Church. Canones generalium Conciliorum (ut Isidorus Dist. 15. can. 1. ait lib. 6. Etym. cap. 16.) à temporibus Constantini [Page 39] coeperunt. Inpraecedentibus nam (que) annis, persecutione fervente, docendarum plebium minimè dabatur fa­cult as. Inde Christianit as in diversas haereses scissaest: quia non er at licentia Episcopis in unū conveniendi, nisi tempore supradicti Imperatoris. Although ever since Quae fuit plenaria Con­ciliorum for­ma. the Apostles held their first Councell in Ierusalem, (Act. 15.) where they made certaine Canons, for the pacification of the Church of Antioch, there were also some Provinciall Councels held by the Bishops, as the violence of persecutions would permit and suffer them to assemble, and the necessity of the Churches did require. As may bee seene in the first Tome of the Councells before the great Nicene Councell was assembled by Constantine. Who being the first Christian Emperour, did greatly labour to setle and advance the dignity of Episcopall govern­ment. And because he knew well, that superiority in the Church, without power and jurisdiction, was to litle purpose. Therefore the good Emperour in his Christian zeale, enacted:

Et si praecipuum Pontificis seu Episcopi munus est doctrinâ verbi populum moderari, tamen, quia non om­nes dicto audientes sunt, nec ejusmodi persuasione ad disciplinam perduci, vel in officio retinere possunt, & superiorit as, in quasunt Ecclesiastici abs (que) imperio & jurisdictione, non sat is habet nervorum & authoritatis; deni (que) quoniam Ecclesia mater & cultrix est Iustitie; I­deo Episcopis peculiaris quaedam Iurisdictio Ecclesiasti­cae civili dignior in personas, & causas Ecclesiasticas le­gibus [Page 40] Imp: est attributa. &c. — ut jus dicant cle­ricis — &c.

And least the Emperour in his Constitution, in these words, ut jus dicant clericis — should seeme to keep short, and restraine the Bishops in their Au­dience, or Consistories, to Clergy-men only; there followes a praterea in the same title in the Code. De Episc. audient: not long after this, praeterea (saith the Emperour there) Ius dicunt laicis.

XXVI. And as before the age of Constantine, for want of power in the Church, and the Assistance of the Christian Magistrate, the Bishops could not restrain, nor suppresse the many heresies, & schismes that did arise in those first ages, most of which here­sies were such as were fit to be beat downe by autho­rity, rather then by reason and argument, they being so impious, insolent, and blasphemous; so after his time, when he had setled the Bishops authority, yet there being two courts, where did arise many diffe­rences and debates between the Bishops, and the se­cular Iudges of that time, touching cognisance of some causes, Iustinian the Emperour made a law, like unto that circumspectè agatis of our King Edward 1. agreeing with it in substance of matter, and arising from the same ground, and pointing to the same end.

The Novell is thus — Si delictum sit Ecclesiasticum Novel. 83. cap. 10. egens castigatione vel mulct â Ecclesiasticâ, Deo ama­biles Episcopi hoc discernant; nihil communicantibus clarissimis provincia Iudicibus. Ne (que) enim volumus [Page 41] talia negotia scire omnino civiles Judices, cum oporteat talia Ecclesiasticè examinari et emendari secundum sa­cras et divinas regulas, quas etiam sequi nostrae non dedignantur leges.

XXVII. And further for the greatnesse of the Bishops authority, it will appeare fully, if we look upon the lawes, as they lye concatenatae in the same title. Where it is said of the Bishops. — Cum sint ordinarij Iudices — and againe, similes Praefectis Praetorio, and further. Ordinariè quo (que) procedunt. The linked Texts in that title of the Code, as they stand cited, doe fully shew the greatnesse of the Bishops Courts and Authority, when they are compared and said to be similes Praefectis Praetorio. Who were Il­lustres Iudices, and so stiled in the law, they being in­deed the most supream Iudges in the whole Empire, there being but three in that spatious Empire. One in Asia, Praefectus Praetorio Orientis. Another in Eu­rope: Praefectus Praetorio Illyrici. The third in Africa. Praefectus Praetorio legionibus et militiae Africanae. These civill Magistrates were respectively Iudges of the Causes, which the Emperour had translated from the Empire to the Church, which when the Emperour had done, and made the Bishops the same Iudges in the Church, as the Praefecti Praetorio were in the Empire before, it appeares hereby fully, how great the authority of the Bishops and their Consi­stories were, wherein they were assisted by their Vicar-generalls, whom now we call Chancellours (as a learned Civilian observeth) who are no up­starts [Page 42] in the world, rising out of the Bishops sloath (as one, though otherwise eloquent and learned, mis-called them) but had their Originall from the Law it selfe.

Touching whom, I will here say something out of the learned Civilians, because commonly their place and Originall is much mistaken by the ignorantly zealous people, who doe now abound in the world, and thinke nothing lawfull in government, unlesse there be expresse text of scripture for it: as if no cal­ling, government, or subordination of Officers in the Church, were lawfull, but what is expressely and ful­ly set downe in the scriptures, and no power or au­thority left in the hands of Christian Kings and Ma­gistrates to appoint Iudges and Officers for Church. discipline, as well as for civill Iudicature.

XXVIII. But to returne: as the Praefecti Praeto­rio; quia illustres erant et antestabant caeteris dignita­tibus, ideo habebant Vicarios suos in civilibus causis audiendis et terminandis: So were the Bishops then, and so are they now Illustres Iudices et antestabant et antestant caeteris dignitatibus in Ecclesia. For the Law paralells them in the Church with the chiefe Iudges in the Empire, as well in this, as in the rest of the parts of their Honour, wherewith the Emperour had honoured them, and the Law honours them at this day. Iustinien's Code hath sundry lawes some of his owne, some of the Emperours before him, even from the dayes of Constantine the great, which shew that Bishops, in their Episcopall Audience, sate not [Page 43] without their Chancellours; although their Chan­cellours sate often without the Bishops, whose high­er charge in Christs Church permitted not the Bi­shops presence in Court causes ordinarily. And though not under the name and title of Chancel­lours, nor alwayes Vicars Generalls, Officials, nor Commissaries, yet they had other titles, but the same offices. Ecclesiastici or Episcoporum Ecdici, as much as to say as Church-Lawyers, or Bishops Lawyers, professed Civilians, and Canonists of that age, the very selfe-same Officers and Office that the Bishops Vicar-generalls then were, and now are. Who together with the Bishops then made, and doe now make but one and the same Tribunall and Consistory: their Commissions they held from the Bishops; but their Iurisdiction from the Law. And the cause why the Imperiall power furnished the Bishops with these Officers, was, the multitude and variety of Ecclesiasticall causes, more in that age then now, the decisions whereof in their Consisto­ries, being left to the Bishops, the Emperour dou­bted might have drawn them from prayer and divine exercises. And a second reason was, that the cause of the cognisance of their Courts, weremore likely to have thereby a more speedy, ready, and Iudicious triall before Iudges of the same learning, which re­quire a whole man, then before Iudges of another, though an higher, requiring (as the Bishops pastorall office doth) a whole man too. And a third reason also may be added. Because that clerkes suits, and [Page 44] quarrells should not be divulged and spread abroad amongst the secular sort, which trenched many times upon the whole profession, especially in Capi­tall matters, wherein Princes aunciently so much tendred the Clergy, that if a Clerke had committed an offence worthy of death or open shame, whereby he became perpetually infamous, hee was not first executed or put to open shame, before hee was de­graded by the Bishop and his Clergy, and so was ex­ecuted and put to shame not as a Clerke, but as a lay­malefactour, for the Honour and dignity of Priest­hood. It were to be wished this order were retained still, that Clerks should not passe immediatly, when they fall into such excesses, from the Altar, to the halter, but hang or suffer other shame without their Priesthood: which order if it were retained still, or might be restored, would much honour the Church and no whit derogate from the Iurisdiction of the Crowne. But this, and whatsoever else is said here, I submit to the censure of superiours.