Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

RULE V. Kings have a legislative power in the affaires of Re∣ligion and the Church.

THis is expressely taught by S. Austin.* 1.1 In hoc Reges sicut eis divinitus praecipitur Deo serviunt in quantum Reges sunt,* 1.2 si in suo regno bona jubeant, mala prohibeant, non solùm quae pertinent ad humanam societatem, verùm etiam quae pertinent ad Divinam religionem, In this Kings in that capacity serve God according to the Divine Commandement, if in their respe∣ctive kingdomes they command good things and forbid evil, not onely in rela∣tion to humane society, but in order to religion.

The least part of this power is to permit the free exercise of it,* 1.3 and to remove all impediments, and to give it advantages of free assemblies, and competent maintenances and just rewards and publick encouragements. So Cyrus and Darius gave leave and guards and rescripts, warranty and provi∣sions and command to the Jewes of the Captivity to build the Temple. So Constantine and Licinius did to the Christians to practise their religion. Thus Hezekiah and some other pious Kings of the Hebrews took away the offences of the people, the brazen serpent, the groves and images, the altar of Bethel, and the idolatrous services. And of these things there is little question; for the Christian Princes by their Authority shut up the Temples of the Heathen Gods.

That which is yet more considerable is,* 1.4 that by punishments they compel their Subjects to serve God and keep his Commandements. That which was observed of the Primitive Christians, that they tied themselves by oaths and Covenants to serve God, to doe justice, not to commit a∣dultery, to hurt no man by word or deed, to doe good to every man they could, to assemble together to worship Christ, that Christian Princes are to secure by laws, that what men will not doe by choice, they may whether they will or no; and this not onely in things relating to publick peace and the interest of the Republick, but in the immediate matters of religion: such as are laws against swearing, against Blasphemy, against drunkennesse and fornication and the like, in which the interest of souls is concerned, but not the interest of publick peace. Hoc jubent Imperatores quod jubet Christus; and it is a great service to Christ that the fear of men be superadded; be∣cause to wicked persons and such for whom the severity of laws was made, it often prevailes more then the fear of God.

But that which is more then all this is,* 1.5 that besides those things in which God hath declar'd his will, the things of the Church, which are di∣rectly under no Commandement of God, are under the supreme power of Christian Princes. I need no other testimony for this but the laws them∣selves which they made, and to which Bishops and Priests were obedient and profess'd that they ought to be so. And this we find in the instance

of divers Popes who in their epistles gave command to their Clergy to ob∣serve such laws which themselves had received from Imperial edicts. For there are divers laws which are by Gratian thrust into his collection which were the laws of Christian Princes. The Canon Judicantem. 13. q. 5. ex∣pressing the office of a Judge in the Cognisance of causes, attributed by Gratian to Pope Eleutherius, was a law made by the Emperor Constantine, l. 1. C. de Judic. C. Theodos. and so was that which was attributed to P. Fabian against accusers, Can. si quis iratus: it is in the Theodosian Code and was made by the same Prince. The Canons which goe under the names ofa 1.6 Sixtus andb 1.7 Adrian and Fabian before cited of the same title were made by Gratian the sonne of Valentinian the Elder:c 1.8 who also made the rescripts for restitution of Church-goods taken from Bishops when they were forc'd from their Sees, attributed to Pope Caius and Pope John. Theodosius the Emperour made the Canon qui ratione* 1.9 for order in accusations, which yet is attributed to Pope Damasus, but is in the Theodosian Code: for thus the Popes easily became law-givers when they adopted into the Canon the laws of their Princes, which by their authority prevail'd beyond the memory of their first makers. The Canon Consanguineos,* 1.10 for separation of mar∣riage within the prohibited degrees, was not the Popes, but made by Theo∣dosius, as it is thought, at the instance of S. Ambrose: and Valentinian made the Canon Privilegia for confirmation of the privileges of the Church,* 1.11 which goes under the Name of Anacletus. I could reckon divers others, for indeed the volume of the Decrees is full of such constitutions which the Christian Emperors made, but they were either assumed by the Popes or imputed to them. But that the Popes as Ecclesiastics had no authority to make laws of Ecclesiastical affaires, but that the Emperors had, was suffi∣ciently acknowledged by Pope Honorius.* 1.12 Imperator Justinianus decrevit ut Canones Patrum vim legum habere oporteat, That the Canons of the Fathers became a law in the Church, was by the constitution of the Emperor Justinian. For that was all the end both of the labours of warre and the Counsels of peace, ut veram Dei cultum orbis nostri plebs devota custodiat, said Theodosius and Honorius in their letters to Marcellinus: that our people may devoutly follow the true worship of God.

Upon this account we find that Constantine,* 1.13 Anastasius and Justinian made laws concerning the expence and rites of sepulture. Gratian, Valen∣tinian and Theodosius forbad dead corps to be interred within the memo∣rials of Martyrs and Apostles. Honorius appointed the Number of Deanes in the Metropolis, and the Immunities of every Church. Leo and Anthemius forbad alienation of Church-lands. But what should I instance in parti∣culars? they that know not this are wholly strangers to the Civil law, par∣ticularly the first book of the Code, the Authentics, the Capitulars of the French Princes, the laws of the Goths and Vandals, and indeed of all the Christian Princes of the world. But the first titles of the Code, De summa Trinitate & fide Catholica, De sacrosanctis Ecclesiis, De Episcopis & Cle∣ricis, De Episcopali Audientia, De haereticis, Manichaeis, Samaritis, De Apostatis, and divers other are witnesses beyond exception. * Now in this there is no exception of matter. For whatsoever is under Govern∣ment is also under the laws of Princes:* 1.14 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said Justinian. Nothing comes amisse to the Prince, every thing is under the Royal cognisance. Constantine made laws concerning festivals, and appointed what labours might and what might not be done upon the Lords

day;* 1.15 and so did Leo the Emperour. Valentinian the Elder made a law that no Clergy-man should receive an inheritance by the will or gift of widdows and orphans, unlesse they were of the Kindred. S.† 1.16 Ambrose complains heavily of the law,* 1.17 and so does S.* 1.18 Hierome, but confesses it was just, and pro∣cur'd by the avarice of some Clergy-men who under cover of religion made a prey of the widdows. But this Decree was sent to Pope Damasus and publickly read in the Churches of Rome. And Honorius the Emperor made a law concerning the election of the Pope. Which two last instances I reckon to be very great, because at Rome now-a-daies they are intolerable.

But if all these laws were made by Emperors onely by force,* 1.19 against right & justice, & beyond their just power, then we are never the nearer for this argument:* 1.20 & that it is so, Baronius is bold to affirm, who upon this title blames Justinian for medling with the affaires of the Church: for Quid Imperatori cum Ecclesia? what hath the Emperor to doe with the Church? we know who said it. And therefore a Synod at Rome under Symmachus abrogated a law made by Basilius a Deputy of King Odoacer in an assembly of Ecclesiastical persons, in the vacancy of the See Apostolick, upon the death of Simplicius. Now the law was a good law, it forbad the alienation of the goods of the Church; yet because it was a law made by a laick, they thought fit to annul it.

To these things I answer,* 1.21 that it matters not what Baronius says against Justinian,* 1.22 for Pope Hadrian the 4^th, who is much more to be credited, commends him, & propounds him as a great Example imitable by all Princes: and it was not Justinian alone, but very many other Princes both before and after Justinian: and therefore to ask what hath the Emperour to doe with the Church? might become Donatus (whose saying it was, and whom S. Austin confuted for saying so) but it becomes not any man that loves truth and order.* 1.23 As for the Roman Synod under Symmachus, the matter was this. He would needs make himself head of a Synod without the Bishop, (for he was lately dead) and made a law with an Anathema for the Sanction, and would have it passe not for the law of the Prince, but for a law of the Church; which because the Ecclesiastics had no reason to accept for such, when it was not so, they did annul it: talem legem viribus carere, nec posse in∣ter Ecclesiastica ullo modo censeri, said Eulalius the Bp. of Syracuse in that Sy∣nod. * But that this makes nothing against the Prince his power of making laws, appears by the great submission which even the Bishops of Rome them∣selves made to the Imperial laws, even when they lik'd them, and when they lik'd them not. I instanc'd before in Damasus causing the law of Valen∣tinian against Clergy-men receiving inheritances from widdows to be read in all the Churches of Rome. Pope Boniface consented to the law which Honorius the Emperor made about the election of the Pope, and was so far from repudiating an Ecclesiastical law made by the Prince, that he intreated him to make it. But that which is most material to this inquiry is, the obe∣dience of S. Gregory the great to Mauritius the Emperor,* 1.24 who made a law that no Souldier should turn Monk without his leave. This S. Gregory esteem'd to be an impious law, he modestly admonished the Emperour of the irreligion of it. But Maurice neverthelesse commanded him to pub∣lish the law. The good Bishop knew his duty, obeyed the Prince, sent it up and down the Empire, and grave this account of it: Utrobique quae debui exolvi, qui Imperatori obedientiam prabui, & pro Deo quod sensi minimè

tacui, I have done both my dutyes, I have declar'd my mind for God, and have paid my duty and obedience to the Emperour. Legibus tuis ipsi quoque pa∣rent Religionis Antistities,* 1.25 said Pope Gelasius to Anastasius the Emperor. Even the Bishops, the Ministers of Religion, obey thy laws. Now this is not for decency onely, & upon prudent considerations, but upon necessity and by the Divine authority: cognoscentes Imperium tibi supernâ dispositione colla∣tum, as knowing that the Empire is given to thee by God. And therefore the great Prelates of the Church, when they desir'd a good law for the Churches advantage should be made, they presently address'd themselves to the Em∣peror, as to him who alone had the legislative power. I have already in∣stanc'd in pope Boniface intreating Honorius to make a law concerning the election of the Pope. Sergius also Patriarch of Constantinople petition'd the Emperor Heraclius to publish a pragmatic sanction that no man should be admitted into the Clergy but into a dead place. * These things are so plain,* 1.26 that I may justly use the words of the Fathers of the 6^th Council of Toledo, speaking of Chintillanus their King, Nefas est in dubium deducere ejus potestatem cui omnium gubernatio superno constat delegata judicio, It is impiety to call in question his power, to whom the Government of all is certain∣ly deputed by the Divine Judgement. I therefore conclude this particular with the excellent words of Cardinal Cusanus.* 1.27 It becomes not any man to say that the most sacred Emperors, who for the good of the Republick did make many constitutions concerning the election of Bishops, collation of benefices, ob∣servation of religions, did erre. Nay, we have read that the Pope of Rome hath intreated them that they would publish laws concerning Divine worship, & for the publick good, and against sinners of the Clergy. And lest peradventure it be said that the strength of all these Constitutions did depend upon the appro∣bation of the Authority Apostolical or Synodical [viz. of the Pope or Council] I will not insist upon this: although (let me say this) I have read and collected fourscore and six chapters of Ecclesiastical Rules of the Antient Emperors, which were to no purpose to insert here, and many other of Charles the Great and his successors, in which many dispositions or appointments are to be found concerning the Pope of Rome, and all Patriarchs, and the conservation of Bi∣shops and others; and yet I never read that ever any Pope was ask'd to approve those laws, or if his approbation did intervene, that upon that account the laws did bind. But it is read that some Popes of Rome have confess'd that they had those Imperial laws in veneration. And this thing is so true and so publick∣ly known, that the French Embassadors openly told it in the Council of Trent, that the Kings of France, by the Example of Constantine, Theodo∣sius, Valentinian, Justinian and other Christian Emperors, made many laws concerning holy things, and that these did not onely not displease the Roman Bishops, but they put many of them into their Canons: that the chiefest Authors of these laws, Charles the Great and Lewis the ninth, they thought worthy to be Canonis'd and declar'd Saints, and that the Bi∣shops of France and the whole order Ecclesiastical have piously rul'd and govern'd the Gallican Church by the prescript of those Ecclesiastical laws which their Kings had made.

Notes

• * 1.1

  1.
• * 1.2

  Contr. Cres∣con. l. 3. c. 51.
• * 1.3

  2.
• * 1.4

  3.
• * 1.5

  4.
• a 1.6

  3. q. 6. c. 16, 17. & 2. q. 8. c. 4.
• b 1.7

  2. q. 3. c. 3.
• c 1.8

  3. q. 6. c. 1.
• * 1.9

  3. q. 9.
• * 1.10

  35. q. 6.
• * 1.11

  25. q. 2.
• * 1.12

  c. 1. Ext. de juram. calum.
• * 1.13

  5.
• * 1.14

  Novel. 133.
• * 1.15

  C. de feriis. l. 3. & Cod. Theod. de fer. l.
• † 1.16

  Epist. 31.
• * 1.17

  1. Leo. 6. Novel. 54.
• * 1.18

  Ep. 2. ad Nepotian.
• * 1.19

  6.
• * 1.20

  tom. 7. A. D. 541.
• * 1.21

  7.
• * 1.22

  apud Radenon. in Frider. lib. 1. cap. 15.
• * 1.23

  Epist. 166.
• * 1.24

  l. 2. ind. 11. ep. 61.
• * 1.25

  Epist. 10.
• * 1.26

  c. 14.
• * 1.27

  lib. 2. Cath. Concord. c. 40.