Religion and loyalty, the second part, or, The history of the concurrence of the imperial and ecclesiastical jurisdiction in the government of the church from the beginning of the reign of Jovian to the end of the reign of Justinian / by Samuel Parker ...

§ VII. But beside these Laws to back these new Decrees of the Church against Hereticks and Heresies, he enacted others by his own Authority to rescue the An∣cient rules of Discipline, that were grown obsolete by the abuses and corruptions of time. And first he reduces the Order of Deaconesses to their Primitive Institution, commanding in pursuance of the rule of the Apostles, and Practice of the Primi∣tive Church, (p) that none be admitted into that Order under the Age of Sixty, and that too with several Limitations, that she appoint Curators or Trustees for her Children, that she carry away with her none of the Plate or Jewels of the Family, and that she bequeath nothing by Will to the Church, Clergy, or Poor, though the particular occasion of this Law was that wicked Fact that Sozomen reports to have been committed at this time by a Deacon of the Church of Constantinople with one of the Deaconesses of the same Church, who had probably setled her personal Estate upon him, not for the Churches

Service but her own. And in the same Rescript commands, That all Women who shave their Hair upon pretence of Religion be cast out of the Church, which was done not only in pursuance of the rule of the Apostle, and the Canons of the Church, particularly the Council of Gangra, that was then taken into the Codex of the Laws Ecclesiastical, but of the Law of Nature it self to prevent the Confusion of Sexes, the distinction being chiefly pre∣served by this Custom. This Rescript was publisht in July, but in September follow∣ing the Clause disabling Deaconesses to dispose of their Moveables by Will to Pious and Charitable Uses, is reverst, provided the Will be made in time of Health, and not upon their Death-beds, when they might be too apt to be imposed upon by Superstition and the Frauds of Priests. At the first Law (q) Baronius takes fire, as if it were a violent restraint of Devotion to God, and Charity to the Poor, and an Abridgement of the Priviledges of Holy Church, which therefore, he says, was soon cancel'd by the Advice of St. Ambrose, that great Assertor of Ecclesiastical Liber∣ty. But that St. Ambrose had any hand in reversing it, we have no Authority of any Historian that I know of but the Car∣dinal himself. But beside by his leave,

such restraining Laws are requisite, nay necessary in all Commonwealths; for there is nothing so Prodigal as Superstition, and wherever there is Religion, that will creep into great numbers of the People, and therefore it concerns the Government eve∣ry where, to take care that Families and the Publick be not defrauded by Prodigal Zeal or under pretence of Devotion. And this abuse was so early, that when Con∣stantine the Great made a Law to the Ci∣tizens of Rome, to enable all Persons what∣soever to give by Will to the Church, not only what Legacies, but what Lands they pleased, which was the occasion of the great Wealth of that Church, that (r) as Am. Marcellinus observes, was made fat with the Offerings of Widows. This Li∣berty the succeeding Emperors found such a consumptive profuseness from the Pub∣lick, that they were forced to limit it in some cases, and in some, to stop it quite up. Valentian the Elder directed (s) a Rescript to Damasus Bishop of the City, to be read in all Churches under his Juris∣diction, to for••id the Clergies acceptance of any Legacies from Religious Women. Which Law was variously censured by the Fathers themselves. St. Ambrose (t) com∣plains of it as a particular Spite and Un∣kindness to the Church, St. Jerom approves

of it, as being extorted by the Rapacious∣ness of the Clergy. But it continued in force till it was by name abrogated by the Emperor Marcian (u) as too rigid and se∣vere a restraint of Pious Uses, and an en∣tire Liberty granted to all Widows and Religious Women to dispose of their own Estates according to the old Constantinian Law. Justinian (w) limited the sense of it, so as that it should not extend to the wrongful disinheriting of Children, be∣cause, he says, when Princes grant such Liberties, they cannot be supposed to grant any thing contrary to the Law of Nature and the known Custom of the Empire, and therefore the Right of Inheritance belong∣ing by both to the Children or Kindred of the Family, if the Alienation from them by such Gifts be apparent, the Govern∣ment ought to stop it, and not suffer the Subjects civil Rights to be defrauded by their too religious bounty, so that these Imperial Concessions are to be limited to such cases only, in which no other Person is wrong'd, but if any be so, that antici∣pates the Grant. And in truth this Im∣posture (and so it is, when it is imposed by the Artifice of the Priests upon the Fol∣ly of the People, (grew so exorbitant in the times of Superstition, that almost all the States of Christendom were forced to

make Statutes of Mortmain, as well as we in England, and it was such a Law, that was the ground of that famous Quarrel between Paul the Fifth and the Venetians. But though former Ages were so wise as to stay their hand when they supposed the Church had enough for it self and the Poor (for in those days they were no Pa∣rish Charge, but were the care of the Church) yet they were never so Prophane and Sacrilegious, as to Strip and Plunder her, when they were pleased to imagine that she had too much. That is the pecu∣liar Glory of our last worthy Age of Re∣formation, when some great Pretenders swept away its Abuses and Revenues toge∣ther. Reforming Rectories, that were a competent maintenance for Men of Edu∣cation, into Vicaredges, the meanness of whose Revenues cannot but expose the poor Incumbents to the contempt of the People; for be the Men what they will, or do they what they can, not only the Common People, but all men, will tram∣ple upon their Poverty. And when all is done, that is the true ground of the con∣tempt of the Clergy: Though there are many more Reasons for it, as the Pro∣phaneness of the Age, and contempt of the Function it self, though that in a great measure first comes from the contempt of

the Men and their Poverty: The wicked licentiousness of the Schismaticks in venting perpetual Lies and Calumnies against all Men that are truly honest for the Church: yet the bottom of all other Contempts, and that which will make them everlasting, is this Remediless Po∣verty. And it is to be fear'd that the curse of God has, and does hang very heavy over this Nation for this wrong done to himself, and I doubt will never be remo∣ved, till some Publick ••••re be taken to make him some competent Restitution; for if there be any one Sin punisht with signal and remarkable Judgments from Heaven, 'tis this daring Sin of National Sacriledge, of which I shall give the pe∣culiar Reason, when I come to shew the high Obligation that is laid by God upon all Christian States to endow the Church with setled Revenues, which is so great, that without it, they cease to be Christian States. But to return to the Series of the History, as this Prince reform'd by him∣self the abuse of Widows and Deaconesses, so did he correct the disorders of Monks, or the Professors of solitary life (for the first Monks were properly Hermites) and enlarge or contract their Priviledges ac∣cording to his own Will or Pleasure, or according to the Temper of the Times.

Thus whereas it had been an old Custom indulged them, to intercede with the Em∣perors Judges for Mercy to Criminals and Malefactors, they grew so bold and inso∣lent as to besiege the Courts, raise Tu∣mults, and obstruct the whole course of Justice, of which Disorders complaint be∣ing made by the Judges, he Publishes (x) a Rescript to Command them from all Ci∣ties into their Solitudes. And two years after, either upon change of Mind, or change of Affairs, or change of Councils, he cancels it. A very frequent thing that, with all Princes to alter their Laws of Privilege, as the conveniences of things alter'd. So the Emperor Valens, when great numbers of Men left their civil Em∣ployments to herd among the Monks for ease and idleness, (y) ferrets them back to their business under pain of forfei∣ture of Goods and Chattels. And so when Constantine the Great had granted great Immunities to the Clergy, and Exemptions from Publick Burthens, great Multitudes quitted their Stations in the Common∣wealth to enjoy the Privileges of the Church, (z) this forced him to enact a Rescript forbidding the admission of Civil and Military Officers into Holy Orders, lest under Pretence of Religion, the Ser∣vice of the State be starved and defrauded.

And there are no less than 16 Laws in the Theodosian Code against this abuse of Cle∣ricatus, as they stile it, they may be seen all together at one View in Gothofred's Pa∣ratitlon to the Title De Decurionibus.

But the most observable Act of Refor∣mation is his Law to restrain the abuse of Ecclesiastical immunity, or the Sanctuary of Christian Churches, where all sorts of Persons that escaped to them, were prote∣cted by the Clergy against the Execution of the Law, and they were grown so bold in the abuse of that Privilege, that they would not deliver them up till they had sued out their Pardon, and therefore this Emperor strictly forbids them to receive or conceal any Debtors, especially those of the Crown, upon penalty of paying the Debt themselves. This was the first Law that was made of this kind, though the following Emperors were very quick-sighted in watching this abuse. For as such Customs naturally spring up of them∣selves from that respect that all Men have to their Religion, and therefore this right of Sanctuary was common to all Reli∣gions in the World, so having Supersti∣tion to back it, it as naturally runs into abuse to the subversion of Justice and Ho∣nesty, when under pretence of Mercy and Humanity, ill Men were shelter'd

against the Laws, and honest Men cheated of their Rights; for I do not find any case in which it was at this time excepted, but only Treason, and therefore it was often requisite to give check to its Licentious∣ness, as Theodosius here does in the Chri∣stian Church, and Tiberius was forced to do as to the Heathen Asyla.

Notes

• (p)

  De E∣pisc. l. 2••.
• (q)

  An. 390. N. 70, 71.
• (r)

  Lib. 2••▪ c. 3.
• (s)

  Dé E∣pisc. l. 20▪
• (t)

  Epist▪ 31.
• (u)

  Mar∣ciani No∣vella 5.
• (w)

  De Te∣stam. l. 48.
• (x)

  De M••∣nachis, l. 1.
• (y)

  De D curionibus l. 63.
• (z)

  De E∣pisc. l. 3.6.
• 9 Cod. Tit. 45. De bis qui ad Ec∣cles. conf••g. l. 1.
• Tacit. An∣nal. lib. 3.