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of government in those matters; yet how can they who allege this, enforce thereby, that consequently the ministry of the church, and no other, ought to have the same, when they are so far off from allowing so much to the ministry of the gospel, as the priesthood of the law had by God's appointment, that we but collecting thereout a difference in authority and jurisdiction amongst the clergy, to be for the polity of the church not inconvenient; they forthwith think to close up our mouths by answering, “That the Jewish high-priest had authority above the rest, only in that they prefigured the sovereignty of Jesus Christ; as for the ministers of the gospel, it is altogether unlawful to give them as much as the least title, any syllable whereof may sound to principality.” And of the regency which may be granted, they hold others even of the laity no less capable than the pastors themselves. How shall these things cleave together? The truth is, that they have some reason to think it not at all of the fittest for kings to sit as ordinary judges in matters of faith and religion. An ordinary judge must be of the quality which in a supreme judge is not necessary: because the person of the one is charged with that which the other `authority dischargeth, without employing personally himself therein. It is an error to think, that the king's authority can have no force nor power in the doing of that which himself may not personally do. For first, impossible it is that at one and the same time, the king in person should order so many and so different affairs, as by his own power every where present are wont to be ordered both in peace and war, at home and abroad. Again, the king in regard of his nonage or minority may be unable to perform that thing wherein years of discretion are requisite for personal action; and yet his authority even then be of force. For which cause we say, that the king's authority dieth not, but is, and worketh always alike. Sundry considerations there may be effectual to withhold the king's person from being a doer of that which notwithstand
power must give force unto, even in civil affairs; where nothing do th moreeither concern the duty, or better beseem the majesty of kings, than personally to administer justice to their people (as most famous princes have done): yet if it be in case of felony or treason, the learned in the law of this realm do affirm, that well may the king commit his au
Stamf. thority to another to judge between him and the offender; Pleas of but the king being himself there a party, he cannot person1. ii. c. 3.'ally sit to give judgment.
As therefore the person of the king may, for just considerations, even where the cause is civil, be notwithstanding withdrawn from occupying the seat of judgment, and others under his authority be fit, he unfit himself to judge; so the considerations for which it were haply not convenient for kings to sit and give sentence in spiritual courts, where causes ecclesiastical ate usually debated, can be no bar to that force and efficacy which their sovereign power hath over those very consistories, and for which we hold, without any exception, that all courts are the king's. All men are not for all things sufficient, and therefore public affairs being divided, such persons must be authorized judges in each kind, as common reason may presume to be most fit: which cannot of kings and princes ordinarily be presumed in causes merely ecclesiastical ; so that even common sense doth rather adjudge this burden unto other men. We see it hereby a thing necessary, to put a difference, as well between that ordinary jurisdiction which belongeth unto the clergy alone, and that commissionary wherein others are for just considerations appointed to join with them,' as also between both these jurisdictions; and a third, whereby the king hath transcendent authority, and that in all causes over both. Why this may not lawfully be granted unto him there is no reason. A time there was when kings were not capable of any such power, as, namely, when they professed themselves open enemies unto Christ and Christianity. A time there followed, when they, being capable, took sometimes more, sometimes less to themselves, as seemed best in their own eyes, because no certainty, touching their right, was as yet determined. The bishops, who alone were before accustomed to have the ordering of such affairs, saw very just cause of grief, when the highest, favouring heresy, withstood, by the strength of sovereign authority, religious proceedings. Whereupon they oftentimes, against this irresistible power, pleaded the use and custom which had been to the contrary; namely, that the affairs of the church should be dealt in by the clergy, and by no other; unto which purpose the sentences that then were uttered in defence of unabolished orders and laws, against such as did of their own heads contrary thereunto, are now altogether impertinently brought in opposition against them, who use but that power which laws have given them, unless men can shew that there is in those laws some manifest iniquity or injustice. Whereas T. C.
de Vita Constant.
1. ii. therefore against the force judicial and imperial, which supreme authority hath, it is alleged, how Constantine termeth church-officers, "overseers within the church;" himself, “ of Easeb. those without the church:” how Augustine witnesseth, that the emperor not daring to judge of the bishop's cause, com- 1. iv. Ep. mitted it to the bishops; and was to crave pardon of the bishops, for that by the Donatists' importunity, which made no end of appealing unto him, he was, being weary of them, drawn to give sentence in a matter of theirs ; how Hilary beseecheth the emperor Constance to provide that the governors of his provinces should not presume to take upon them the judgment of ecclesiastical causes, to whom only commonwealth matters belonged; how Ambrose affirmeth, that Lib. v. palaces belong unto the emperor, churches to the minis- ep. 33. try; that the emperor hath the authority over the common walls of the city, and not in holy things ; for which cause he never would yield to have the causes of the church debated in the prince's consistories, but excused himself to the emperor Valentinian, for that being convented to answer concerning church-matters in a civil court, he came not. We may by these testimonies drawn from antiquity, if we list to consider them, discern how requisite it is that authority should always follow received laws in the manner of proceeding. For, inasmuch as there was at the first no certain law determining what force the principal civil magistrate's authority should be of, how far it should reach, and what order it should observe; but Christian emperors from time to time did what themselves thought most reasonable in those affairs; by this means it cometh to pass that they in their practice vary, and are not uniform. Virtuous emperors, such as Constantine the Great was, made conscience to swerve unnecessarily from the custom which had been used in the church, even when it lived under infidels; Constantine, of reverence to bishops and their spiritual authority, rather abstained from that which himself might lawfully do, than was willing to claim a power not fit or decent for him to exercise. The order which hath been before, he ratifieth, exhorting the bi
shops to look to the church, and promising that he would do the office of a bishop over the commonwealth; which very Constantine notwithstanding, did not thereby so renounce all authority in judging of special causes, but that sometime he took, as St. Augustine witnesseth, even personal cognition of them; howbeit, whether as purposing to give them judicially any sentence, I stand in doubt. For if the other, of whom St. Augustine elsewhere speaketh, did in such sort judge, surely there was cause why he should excuse it as a thing not usually done. Otherwise there is no let, but that any such great person may hear those causes to and fro debated, and deliver in the end his own opinion of them, de-, claring on which side himself doth judge that the truth is. But this kind of sentence bindeth no side to stand thereunto; it is a sentence of private persuasion, and not of solemn jurisdiction, albeit a king or an emperor pronounce it. Again, on the contrary part, when governors infected with heresy were possessed of the highest power, they thought they might use it as pleased themselves to further by all means that opinion which they desired should prevail ; they not respecting at all what was meet, presumed to command and judge all men, in all causes, without either care of orderly proceeding, or regard to such laws and customs as the church had been wont to observe. So that the one sort feared to do even that which they might; and that which the other ought not, they boldly presumed upon; the one sort of modesty excused themselves where they scarce needed; the other, though doing that which is inexcusable, bear it out with main power, not enduring to be told by any man how far they roved beyond their bounds. So great odds was between them whom before we mentioned, and such as the younger Valentinian, by whom St. Ambrose being commanded to yield up one of the churches under him unto the Arians, whereas they which were sent on his message alleged, that the Emperor did but use his own right, forasmuch as all things were in his power; the answer which the holy bishop gave them was, “That the church is the house of God, and that those things that are God's are not to be yielded up, and disposed of at the emperor's will and pleasure ; his palaces he might grant to whomsoever he pleaseth, but God's own habitation not so.” A cause why many times emperors do more by their absolute authority than could very well stand with reason, was the over-great importunity of wicked heretics, who being enemies to peace and quietness, cannot otherwise than by violent means be supported.
In this respect therefore we must needs think the state of our own church much better settled than theirs was; because our laws have with far more certainty prescribed bounds unto each kind of power. All decision of things doubtful, and correction of things amiss, are proceeded in by order of law, what person soever he be unto whom the administration of judgment belongeth. It is neither permitted unto prelates nor prince to judge and determine at their own discretion, but law bath prescribed what both shall do. What power the king hath, he hath it by law, the bounds and limits of it are known; the entire community giveth general order by law, how all things publicly are to be done, and the king, as the head thereof, the highest in authority over all, causeth, according to the same law, every particular to be framed and ordered thereby. The whole body politic maketh laws, which laws gave power unto the king : and the king having bound himself to use according unto law that power, it so falleth out, that the execution of the one is accomplished by the other in most religious and peaceable sort. There is no cause given unto any to make supplication, as Hilary did, that civil governors, to whom commonwealth matters only belong, may not presume to take upon them the judgment of ecclesiastical causes. If the cause be spiritual, secular courts do not meddle with it: we need not excuse ourselves with Ambrose, but boldly and lawfully we may refuse to answer before any civil judge in a matter which is not civil, so that we do not mistake either the nature of the cause or of the court, as we easily may do both, without some better direction than can be by the rules of this newfound discipline. But of this most certain we are, that our laws do neither suffer a spiritual courta to entertain those
a See the statute of Ed. I. and Ed II. and Nat. Brev. touching prohibition. See also in Bracton these sentences, lib. v. cap. 2. Est jurisdictio ordinaria quædam dele. gata, quæ pertinet ad sacerdotium, et forum ecclesiasticum, sicut in causis spiritualibas et spiritualitati annexis. Est etiam alia jurisdictio ordinaria vel delegata, quæ pertinet ad coronam, et dignitatem regis, et ad regnum in causis et placitis rerum temporalium in foro seculari. Again : Cum diversæ sint hinc inde jurisdictiones, et diversi judices, et diversæ causæ, debet quilibet ipsorum imprimis æstimare, an sua sit jurisdictio, ve falcem videator ponere in messem alienam. Again : Non pertinet ad regem injungere pænitentias, nec ad judicem secularem, nec etiam ad eos pertinet